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de Haan Law Firm, PLLC and Kezhaya Law PLC

101 E. Pennington St. 1202 NE McClain Rd.

Suite 201 Bentonville, Arkansas 72712

Tucson, Arizona 85701 phone: (479) 431-6112

Telephone: (520) 358-4089 fax: (479) 282-2892

Facsimile: (520) 628-4275 email: matt@kezhaya.law

Stuart P. de Haan, State Bar No. 26664 Matthew A. Kezhaya, phv, Ark. Bar # 2014161

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

The Satanic Temple, Inc. et al.,

Plaintiffs,

v.

City of Scottsdale,

Defendant

Case No. 18-cv-00621-DGC

Plaintiffs’ motion for supplemented 

and amended findings of fact, and to 

alter or amend the judgment

Respectfully submitted on February 28, 2020,

On behalf of Plaintiffs

By /s/ Stuart P. de Haan and /s/ Matthew A. Kezhaya

Stuart P. de Haan, 

AZ Bar No. 026664

Matthew A. Kezhaya, 

AR Bar No. 2014161 (pro hac vice)

Attorney for Plaintiffs Attorney for Plaintiffs

de Haan Law Firm, PLLC

101 E Pennington Avenue, Suite 201

Tucson, Arizona 85701

1202 NE McClain Rd

Bentonville AR 72712

Phone (520) 358-4089 (479) 431-6112

Fax (520) 628-4275 (479) 282-2892

Email stu.dehaan@gmail.com matt@kezhaya.law

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INTRODUCTION AND SUMMARY

COME NOW Plaintiffs, by and through counsel of record, who move this Court for 

amended and supplemented findings, pursuant to FRCP 52(b), and for an altered or 

amended judgment pursuant to FRCP 59.

The Court’s findings should be reconsidered and amended to (1) find that the City’s 

conduct amounts to disparaging TST’s religion; (2) identify and apply the appropriate 

Equal Protection analysis; and (3) find that the emails are admissible.

The Establishment Clause prohibits cities form exploiting a prayer opportunity to 

proselytize, or to disparage, a specific religion. Rubin was concerned with governmental 

“proselytizing;” we are concerned with governmental “disparagement.” Rubin finds a

prayer selection policy did not affiliate a city with Christianity because the city had codified 

and enforced a litany of neutrality enforcing safeguards.

This policy, however, has no safeguards and is instead subject only to the arbitrary 

authority of a bureaucrat whose understanding of the policy evolved as the case progressed. 

Adding in the thousands of emails from the public and the public statements from City 

councilmembers–all objecting to TST’s participation on religious grounds–leads to the 

inevitable conclusion that Rubin compels a finding in favor of Plaintiffs.

We also sued under the Equal Protection Clause but there is no Equal Protection 

analysis. Strict scrutiny applies because TST, a minority religion, was prohibited through 

a majoritarian political process. This policy delineates between majority and minority 

faiths by requiring a physical location in the metropolitan area and a “substantial” number 

of residents in the City.

Alternatively, if the Court holds onto the finding that TST’s exclusion has no 

relationship to the thousands of emails and public statements in objection to TST’s religion, 

intermediate scrutiny applies because the “substantial connection” policy affects 

enumerated constitutional rights. The “substantial connection” policy delineates between 

residents and non-residents and silences speech in, as the opinion finds, a content-neutral 

manner. Intermediate scrutiny applies to both.

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Last, the exclusion of the councilmember emails is rooted in a finding that there was no 

evidence that the emails were sent in the course and scope of the agency. The only 

testimony on the subject was that the two councilmembers were employees of the City, 

they received emails to the “City Council” address, Littlefield’s email shows it came from 

her “@scottsdaleaz.gov” address, and both emails are in response to emails from the City 

Council address. Mr. Smith’s email, even if it is hearsay, is a clear statement of intent. 

Failing the above, the emails should be proffered for the record.

ARGUMENT

1: In absence of neutrality-enforcing safeguards, the City’s prayer 

selection process is presumptively unconstitutional because TST was 

prohibited after a public outcry which was joined by councilmembers.

Plaintiffs sued under the Establishment Clause. The Court found that Rubin is 

inapposite because the claim there was “very different than the one at issue here.” Opinion 

at p. 17. The Court should reconsider because the relevant sentence in Marsh prohibits 

governments from exploiting prayer opportunities to proselytize or to disparage. Rubin is 

concerned with proselytizing; this case is concerned with disparagement. Both sound 

under the Establishment Clause.

Legal framework

It is axiomatic that the Establishment Clause prohibits discrimination on religious lines. 

Hassan v. City of N.Y., 804 F.3d 277, 290 fn.2 (3d Cir. 2015) (“Equality before the law is 

of the very essence of liberty, whether civil or religious”) (quoting Permoli v. Municipality 

No. 1 of New Orleans, 44 U.S. 589, 597, 11 L. Ed. 739 (1845)).

Specific to the legislative prayer, the inquiry looks to the selection policy. See Marsh 

v. Chambers, 463 U.S. 783, 103 S. Ct. 3330 (1983). The Supreme Court has since 

emphasized repeatedly that legislative prayer is no exception to the Establishment Clause. 

Town of Greece v. Galloway, 572 U.S. 565, 576, 134 S. Ct. 1811, 1819 (2014) (“Marsh

must not be understood as permitting a practice that would amount to a constitutional 

violation if not for its historical foundation;”) see also Am. Legion v. Am. Humanist Ass'n, 

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139 S. Ct. 2067, 2088 (2019) (“the Establishment Clause permits a nondiscriminatory

practice of prayer at the beginning of a town council session”) (emphasis added).

The theme of nondiscrimination abounds in the most recent Ninth Circuit case to 

consider a city council prayer ceremony. See Rubin v. City of Lancaster, 710 F.3d 1087 

(9th Cir. 2013); see also Williamson v. Brevard Cty., 928 F.3d 1296 (11th Cir. 2019)

(legislative prayer selection failed Establishment Clause scrutiny because “Commissioners 

rejected speakers based squarely on the nature of the religious beliefs they held;”) Lund v. 

Rowan Cty., N.C., 863 F.3d 268 (4th Cir. 2017) (same).

As explained by the Rubin Court, the inquiry looks to the “government’s” actions to 

determine if, in effect, the prayer policy runs afoul of the Establishment Clause. Rubin, 

710 F.3d at 1096 (emphasis in original). There, the question was if the city had affiliated 

itself with Christianity because the plaintiffs were two offended listeners who did not like 

the sectarian messages being delivered at them. 

The Rubin Court explains that this concern was met by Samuel Adams, who stated “he 

was no bigot, and could hear a prayer from a gentleman of piety and virtue, who was at the 

same time a friend to his country.” Id. (quoting Marsh, above).

Analysis

There is no room for doubt that TST would not have been excluded if the public and 

city councilmembers shared Samuel Adams’s sentiments. The operative inquiry goes back 

to this sentence in Marsh: 

“The content of the prayer is not of concern to judges where, 

as here, there is no indication the prayer opportunity has been 

exploited to proselytize or advance any one, or to disparage

any other, faith or belief.” 

Id. at 794-95 (emphasis added).

The Rubin Court was concerned with whether there was “any indication” that the prayer 

opportunity was exploited “to proselytize.” Our claim asks if there is “any indication” that 

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the prayer opportunity was exploited “to disparage.” Our claim is inextricably linked to 

the same foundational sentence relied upon by the Rubin Court.

As we argued at the close of trial, Rubin controls this case. There, the prayer selection 

process was not unconstitutional because (1) it codified a “litany” of neutrality-enforcing 

safeguards; (2) it took proactive measures to deliver on its promise of inclusivity; and (3) 

the City repeatedly stressed nonsectarian aims. Id. at 1097-98. 

The Rubin Court found it noteworthy that “the clerk has never removed a 

congregation’s name from the list of invitees.” Id. at 1098. And there was “nothing in the 

record or in the prayer policy to indicate that the City has affiliated itself with Christianity.” 

Id. at 1099-1100.

Here, none of these factors can be found. First, unlike the Rubin policy, there is not a 

single neutrality-enforcing safeguard. It is unwritten, it has no appeals process, and it was 

not neutrally applied. Taking the City’s word at face value–as the Court does–it is subject 

only to the arbitrary authority of an unelected official, whose understanding of the 

“selection policy” evolved as this litigation progressed.

Second, unlike the Rubin policy, there was no effort to deliver on its promise of 

inclusivity. The Rubin policy involved actively maintaining a list of local religious groups 

by the city clerk and mass mailing them an invitation to participate. Ms. Kuester 

specifically testified that she did nothing to continuously update the list of invokers. Her 

invitations were limited to the list. The only evidence that the list was “maintained” 

involved organizations who had made personal contact with Ms. Kuester’s boss, who then 

directed Ms. Kuester to add that one organization.

The last factors can be addressed together. Here, there is no indication the City stressed 

nonsectarian aims. To the contrary, the Mayor’s statements that “we’ve decided to keep 

our traditional invocations” and bragging that he, “Stopped so called ‘Satanists’ from 

mocking City Hall traditions with a ‘prayer’” can only be read as “us vs. them” in nature. 

And it can’t be overemphasized that TST was invited and then uninvited, which stands in 

stark contrast to the Rubin facts where nobody was removed from the list.

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Rubin is also compelling because it emphasizes repeatedly that the “government’s” 

actions determine the matter. Rubin, 710 F.3d at 1096 (emphasis in original). The opinion 

discounts entirely that the City is the defendant, and instead turns on a determination that 

Mr. Biesmeyer is not, individually, a bigot. Opinion at p. 17. This conflates the analysis.

It is unavoidable that the sequence of events ending in TST’s exclusion was prompted 

by thousands of emails in objection to a Satanic–not a “Tucsonan”–invocation. That 

cacophony of majoritarian objection was joined by public statements of the City’s highest 

elected officials–again, on religious grounds. This led to Mr. Biesemeyer’s involvement 

and, shortly thereafter, the “substantial connection” policy was “discovered” by an 

unnamed city attorney in anticipation of litigation. Thus, TST was excluded.

Conclusion

Plaintiffs sued the City under the Establishment Clause on the argument that the City 

exploited a prayer opportunity to disparage TST’s religious beliefs. The City cannot escape 

liability for prohibiting TST, and only TST, from the legislative invocation by assigning 

all blame to a silent patsy. Whether Mr. Biesemeyer is a bigot is irrelevant to the analysis

because the inquiry looks to the City’s conduct, which includes the councilmember 

statements. TST was the only group to ever be prohibited and, then, only after a loud and 

conspicuously religious objection. The Court’s finding that Rubin is inapposite should be 

reconsidered and resolved in Plaintiffs’ favor.

2: The final order needs an Equal Protection Clause analysis.

Plaintiffs also sued the City under an Equal Protection theory but the final order lacks 

an analysis under any of the three recognized levels of scrutiny. The Equal Protection 

Clause directs that all persons similarly circumstanced shall be treated alike. Plyler v. Doe, 

457 U.S. 202, 216-17, 102 S. Ct. 2382, 2394 (1982). In a religious discrimination case, a 

the Ninth Circuit recently declined to decide what tier of scrutiny applies. Catholic League 

for Religious & Civil Rights v. City & Cty. of S.F., 624 F.3d 1043 (9th Cir. 2009) (en 

banc).

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The Equal Protection Clause has three levels of judicial scrutiny: strict scrutiny, 

intermediate scrutiny, and rational basis. Below, we provide the Court with the framework 

for a decision along each of the three lines.

As a preview, strict scrutiny should apply if the Court finds TST is a suspect class, or 

if TST was subjected to a special hurdle not otherwise placed in front of other religious 

groups. This is our preferred test because Ms. Kuester testified nobody else was subjected 

to the “substantial connection” scrutiny. Everyone else was permitted participation without 

question until a heckler’s veto crashed city servers. This is constitutionally suspect.

Alternatively, intermediate scrutiny should apply if the Court finds that TST’s religious 

message had nothing to with its preclusion and, instead, the “substantial connection” policy 

was neutral in both intent and application as to TST’s religion, instead focusing only on 

whether the speaker is a resident of the City. This is our next preference. Even taking the 

City’s story as true—as the Court has—the policy silences speech and gives preferential 

treatment to residents over non-residents. This impacts enumerated constitutional rights,

to which the intermediate scrutiny test applies.

The last option is rational basis. At minimum, there is a constitutional guaranty against 

irrational laws. We can conjure no argument for what legitimate governmental purpose is 

furthered by the “substantial connection” policy and the City has offered none. It falls to 

the Court to do the City’s job and determine what rational relationship this policy has to 

any legitimate governmental interest. We posit that there is no rational relationship 

between this policy and any legitimate purpose.

The final order should be amended to select one of the tests. Regardless which test the 

Court applies, the Court should find an Equal Protection violation and grant the prayer for 

relief in the amended complaint.

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2.1: Strict scrutiny applies to classifications that either disadvantage a 

suspect class or impinge upon the exercise of a fundamental right. Strict 

scrutiny applies because the “substantial connection” policy does both.

As we argued in the reply in support of cross motion for summary judgment at pp. 10-

12, strict scrutiny applies because TST is a minority religious group which was subjected 

to special scrutiny because of their religion.

Legal framework

The Plyler Court explains, “we would not be faithful to our obligations under the 

Fourteenth Amendment if we applied so deferential a standard [as rational basis] to every 

classification.” Id. After all, “the Equal Protection Clause was intended as a restriction on 

state legislative action inconsistent with elemental constitutional premises.” Id.

As a result, classifications that disadvantage a “suspect class” or impinge upon the 

exercise of a “fundamental right” are presumptively unconstitutional. Id. A group is a 

suspect class if they “have historically been relegated to such a position of political 

powerlessness as to command extraordinary protection from the majoritarian political 

process.” Id. at fn. 14 (internal quotes omitted).

A “fundamental right” is one explicitly or implicitly stated in the Constitution. Plyler,

457 U.S. at 217, fn. 15. The right to be free from religious discrimination is a fundamental 

right. See U.S. Const. Amend. I (the Establishment Clause and the Free Exercise Clause).

If legislation, or even simply a “practice” as this Court found, disadvantages a suspect 

class, then the practice is presumptively unconstitutional. Id., 457 U.S. at 217; see also

Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 

(1978) (§ 1983 is a mechanism to constitutionally scrutinize “customs” just as much as 

“legislation.”) To survive a constitutional challenge, such classifications must be 

“precisely tailored to serve a compelling governmental interest.” Id.

Sometimes a classification is facially neutral. In these cases, courts must not begin and 

end their analysis with whether the defendant admits to being a bigot under oath. Instead, 

courts must make a “sensitive inquiry into such circumstantial and direct evidence of intent 

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as may be available.” See De La Cruz v. Tormey, 582 F.2d 45, 58-59 (9th Cir. 1978)

(citing Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 and Arlington 

Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. 

Ed. 2d 450); see also Washington v. Trump, 847 F.3d 1151, 1167-68 (9th Cir. 2017) (“It 

is well established that evidence of purpose beyond the face of the challenged law may be 

considered in evaluating Establishment and Equal Protection Clause claims;”) and Church 

of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 534, 113 S. Ct. 2217, 2227 (1993)

(“Facial neutrality is not determinative;”) Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 

308, 120 S. Ct. 2266, 2278 (2000) (“it is nonetheless the duty of the courts to distinguish a 

sham secular purpose from a sincere one.”) (internal quotes omitted).

The relevant considerations include everything from the historical background of the 

decision, the specific series of events leading to the enactment or official policy in question, 

and the legislative or administrative history, including contemporaneous statements made 

by members of the decisionmaking body. Church of Lukumi Babalu Aye, 508 U.S. at 540; 

see also id. at 535 (“the effect of a law in its real operation is strong evidence of its object.”) 

Another consideration includes “substantive departures . . . particularly if the factors 

usually considered important by the decisionmaker strongly favor a decision contrary to 

the one reached.” Arlington Heights, 429 U.S. at 267.

The bottom line is to determine whether the “government’s actual purpose was to 

endorse or disapprove of religion.” Wallace v. Jaffree, 472 U.S. 38, 56, 105 S. Ct. 2479, 

2489 (1985) (emphasis added).

Further support for the strict scrutiny analysis can be found in another provision of the 

First Amendment, the Free Speech Clause. In a Free Speech analysis, the principal inquiry 

is whether the government has adopted a regulation of speech without reference to the 

content of the regulated speech. Madsen v. Women's Health Ctr., 512 U.S. 753, 763, 114 

S. Ct. 2516, 2523 (1994).

The First Amendment “strictly limits” the power of governments to selectively shield 

the public from some kinds of speech on the ground that they are more offensive than 

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others. Erznoznik v. Jacksonville, 422 U.S. 205, 209, 95 S. Ct. 2268 (1975). If a regulation 

was adopted to silence the content of speech, then it must survive strict scrutiny. United 

States v. Playboy Entm't Grp., 529 U.S. 803, 813, 120 S. Ct. 1878, 1886 (2000)

Once it is shown that discriminatory intent was a “motivating” factor behind enacting 

the law, the burden shifts to the law’s defenders to demonstrate that the law would have 

been enacted without this factor. Hunter v. Underwood, 471 U.S. 222, 228, 105 S. Ct. 

1916, 1920 (1985).

Analysis

When applying the above framework, there is no room for doubt that the strict scrutiny 

test applies to the “substantial connection” policy. As we discussed above, strict scrutiny 

applies when the classification disadvantages a “suspect class” or impinges upon the 

exercise of a “fundamental right.” This policy does both.

Strict scrutiny applies if TST is a suspect class or if the right to be free from religious 

discrimination is implicated by the substantial connection policy. This is true regardless 

whether the Court finds Mr. Biesemeyer was lying when he testified about “his reason,” 

i.e. not the City’s reason, for denying Plaintiffs’ invocation request. Opinion at pp. 16-17.

The relevant considerations provided by a tapestry of Equal Protection cases make clear 

that the Court’s “duty to distinguish a sham secular purpose from a sincere one” is not 

discharged by ending the analysis at determining that Plaintiffs failed to prove that Mr. 

Biesemeyer, personally, is a bigot. Santa Fe, above.

Instead, the analysis turns on whether an outside observer would believe that, after the 

following sequence of events, the City expressed a “message of . . . disapproval” about 

TST. Lynch v. Donnelly, 465 U.S. 668, 688, 104 S. Ct. 1355, 1367 (1984) (O’Connor, J., 

concurring); see also Catholic League for Religious & Civil Rights v. City & Cty. of S.F., 

624 F.3d 1043, 1057 (9th Cir. 2009) (a message of disapproval “is all it takes for it to be 

unconstitutional.”)

1. Ms. Kuester scheduled TST, as she did with all other groups, without inquiry into 

their religious views. Opinion at p. 15.

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2. “Thousands” of emails objecting to Plaintiffs’ equal participation on religious 

grounds crashed City servers. Id. at p. 17.

3. City councilmembers expressly stated that they objected to Plaintiffs’ equal 

participation, again on religious grounds. Id. at pp. 15-16.

4. The Mayor informed the public that he found TST “repugnant” and “did not 

condone The Satanic Temple.” Id. at p. 15.

5. Plaintiffs were precluded from participation. Id. at pp. 13-14.

6. The Mayor informed the public that was “standing up to Satanists,” meaning, “The 

city has said no” to Plaintiffs. Id. at p. 15; see also Exhibit 11 (emphasis added).

7. The Mayor bragged in reelection literature that he “Stopped so called ‘Satanists’ 

from mocking City Hall traditions with a ‘prayer.’” Exhibit 13.

Beyond the above governmental disparagement of TST as a religion, the “substantial 

connection” policy impacts TST as a suspect class. The City’s consideration of whether 

there are a “substantial number” of residents in the religious group, opinion at p. 13, raises 

immediate red flags that the policy is being used to delineate between majority and 

minority faiths. Whatever “substantial” means, it is an improper line between those faiths 

that are “big enough,” and those that aren’t.

Additional red flags are raised by the requirement that the organization be physically 

located in the metropolitan area. Id. A physical location costs money, and minority faiths 

lack the financial resources to establish a physical location in every metropolitan area.

Further, the overwhelming public response–joined by the City’s highest elected 

officials–in opposition to our invocation is proof-positive that we were on the wrong end 

of a “majoritarian political process.” Plyler at fn. 14. This means our circumstances,

“command extraordinary protection” by the judiciary. Id.

Second it is firmly rooted in our constitutional jurisprudence that people have the right 

to participate in the public process without governmental consideration of their faith, i.e. 

to be free from religious discrimination. See Trump, 847 F.3d 1167-68 (cert denied sub 

nom. Golden v. Washington, 138 S.Ct. 448 (2017)). 

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It is an inescapable fact that the substantial connection policy was first enunciated 

immediately following a deluge of objections, joined by a majority of the City’s highestelected officials, to TST’s equal participation. Thus, TST’s faith was a consideration in 

establishing a precedent that organizations must have a “substantial connection” in order 

to participate.

Beyond that, it is compelling if not dispositive under the Arlington Heights “substantial 

departure” test that TST was granted an invitation in the first place. Ms. Kuester testified 

that the normal course of conduct for scheduling an invocation was a 3-5 minute phone call

which consisted only of the identity of the speaker and when the invocation would take 

place.

The undisputed evidence was that no religious organizations had to answer any 

questions about their number of adherents in Scottsdale the Phoenix metro area or their 

physical establishments. Nor did TST, until Ms. Kuester was directed otherwise. Thus, it 

ran afoul of the Equal Protection Clause for the City to create a condition that TST, but 

nobody else, “prove” an ever-shifting definition of “substantial connection.”

Conclusion

The only question is if the City has met its burden and explained to the Court how the 

substantial connection policy is “precisely tailored to serve a compelling governmental 

interest.” At no point has the City sustained that burden. The judgment should be amended 

to provide a strict scrutiny analysis and find that Plaintiffs are entitled to Equal Protection 

Clause relief.

2.2: Intermediate scrutiny applies when an enumerated constitutional right 

is impacted by a classification. The “substantial connection,” even assuming 

it is content-neutral, still impacts free speech and the right to travel.

The next possibility is intermediate scrutiny. In an Equal Protection case, the 

intermediate scrutiny analysis is famously employed to consider gender issues. E.g. Craig 

v. Boren, 429 U.S. 190, 97 S. Ct. 451 (1976). But the test is not limited to gender 

classifications. Broadly, the intermediate scrutiny test appears to apply when important, 

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but not fundamental, constitutional rights are impacted. See District of Columbia v. Heller, 

554 U.S. 570 (2008) (gun rights) see also, e.g., United States v. O'Brien, 391 U.S. 367, 88 

S. Ct. 1673 (1968) (content-neutral regulations of speech).

As explained in Heller, enumerated constitutional rights are entitled to no less than an 

intermediate scrutiny analysis. See Heller, 554 U.S. at fn. 27 (rejecting the rational basis 

test because, otherwise, the guarantees of the Bill of Rights would be “redundant with the 

separate constitutional prohibition on irrational laws.”)

One constitutionally enumerated but non-fundamental right is the Privileges and

Immunities Clause, U.S. Const. Amend. IV § 1, which broadly protects the right to travel 

and prohibits states from the disparately treating people based on whether they are a citizen 

of the state. See Saenz v. Roe, 526 U.S. 489, 500, 119 S. Ct. 1518, 1525 (1999).

Just as citizens have the “right to be treated as a welcome visitor rather than an 

unfriendly alien while temporarily present” in their sister states, id., they also have the same 

right while traveling to sister cities. United Bldg. & Constr. Trades Council v. Camden, 

465 U.S. 208, 222, 104 S. Ct. 1020, 1029 (1984). 

Under Camden, cities cannot, without a “substantial reason,” discriminate in favor of 

their residents; and, even then, the discrimination must bear a “close relation” to the reason. 

Id. This is the intermediate scrutiny test. 

The intermediate scrutiny test requires the government to proffer an interest and prove

it is “substantial.” See Cincinnati v. Discovery Network, 507 U.S. 410, 416, 113 S. Ct. 

1505, 1510 (1993) (commercial speech case). To do so, the government must prove that it 

developed a basis in fact to find that the substantial interest is furthered by the policy at 

issue. Id. This requires some form of study. See Krantz v. City of Fort Smith, 160 F.3d 

1214, 1222 (8th Cir. 1998).

Analysis

Here, the City’s position all along has been that all religions with a “substantial 

connection” to the City may speak at the ceremony. This amounts to either of two 

arguments which both end in the intermediate scrutiny test. 

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First, it could mean that the “substantial connection” policy is a content-neutral 

regulation of who may speak. Or, it could mean that “our residents are favored over nonresidents.” Either way, intermediate scrutiny applies.

The intermediate scrutiny analysis is straightforward. The City failed to sustain its 

burden to show that it studied the matter, found an evil, and propounded a regulation makes 

a classification which shares a close relationship with curing that evil. The City didn’t 

conduct a study, didn’t enunciate any evil at all, and has never made any argument for how 

the “substantial connection” policy furthers any governmental purpose.

2.3: The policy fails to survive even rational basis because the City never 

advanced a legitimate public purpose behind limiting invokers to those 

organizations in the Phoenix metro area with a “substantial” number of 

members in the Scottsdale community.

The last level of judicial scrutiny is “rational basis.” As the Plyler Court explains, the 

initial discretion to determine what is “different” and what is “the same” resides in the 

legislatures of the States. Id. States must have substantial latitude to establish 

classifications that roughly approximate the nature of the problem perceived which 

accommodates competing concerns both public and private. Id. For this group of actions, 

the constitution only seeks assurances that “the classification at issue bears some fair 

relationship to a legitimate public purpose.” Id.

The rational basis test is notoriously difficult for a plaintiff to overcome because the 

Court can fashion its own legitimate governmental interest and how that interest is 

rationally related to the policy at issue, provided only that the Court is “careful not to 

attribute to the government purposes which it cannot reasonably be understood to have 

entertained.” Christian Sci. Reading Room Jointly Maintained v. San Francisco, 784 F.2d 

1010, 1013 (9th Cir. 1986) (internal quotes omitted) (rejecting “patently make-weight” 

arguments concocted only after the fact).

But, despite that “most” governmental classifications will survive the rational basis test, 

this does not mean there is no meaningful judicial review. In Heller, above, it was 

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explained that citizens are constitutionally guaranteed to be free from irrational laws. 

Heller at fn. 27; see also Reading Room, above (concluding that an airport’s eviction of a 

reading room, because it is religious, does not even survive the rational basis test).

Analysis

Here, the City never offered a legitimate governmental interest and never offered 

explanation for how the policy is rationally related to any legitimate interest. Assuming 

the Court does not apply the strict scrutiny test or the intermediate scrutiny test, it falls 

upon the Court to perform the City’s argument for them.

Supplemented findings and conclusions are necessary to identify the legitimate 

governmental interest furthered by a policy which requires a religion have a physical 

presence in the Phoenix metropolitan area and have a “substantial number” of religious 

adherents within the City boundaries. Opinion at p. 13.

On this record, there is no legitimate interest that does not run afoul of at least one of 

the above constitutional restrictions. The interest cannot be “avoiding controversy,” for 

that would run afoul of the rule against yielding to a heckler’s veto. Nor can the interest 

be “suppressing a minority religion” because that would run afoul of the rule against 

governmental disparagement of a religion and religious discrimination. Nor can the 

interest be “favoring our citizens over another city’s metropolitan area’s citizens” because 

this would run afoul of the privileges and immunities clause.

Conclusion

The City offered no evidence of the any legitimate governmental purpose furthered by 

the “substantial connection” policy. That is because there is none. Cities cannot give 

disparate treatment to religious minorities, cannot yield to heckler’s vetoes, and cannot 

give favorable treatment to residents over non-residents. This policy fails even rational 

basis review.

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Conclusion: the policy fails no matter what test the Court selects

Plaintiffs sued under the Equal Protection Clause but the final judgment lacks an Equal 

Protection analysis. No matter which tier applies, the “substantial connection” policy fails 

to survive constitutional scrutiny.

The strict scrutiny test applies because the “substantial connection” policy, even 

assuming it isn’t an obvious pretext, was applied to prohibit a minority religion after a 

public outcry on religious grounds was joined by disparaging statements by the City’s 

highest officials. This policy impacts a suspect class and fundamental constitutional rights.

Alternatively, the intermediate scrutiny test should apply because the “substantial 

connection” policy silences speech and treats residents better than non-residents. This 

policy impacts enumerated, if not fundamental, constitutional rights.

But even if rational basis applies, the policy still fails because the clear evidence was 

that Mr. Biesemeyer’s attention was called to the matter by the “thousands” of emails 

which crashed City servers. Neither avoiding controversy nor silencing a minority religion 

are legitimate governmental interests. Nor is giving preferential treatment to non-residents.

3: The emails should have been admitted because they are responding 

to emails which all the councilmembers received.

Last, a simple housekeeping argument. The Court excluded two emails, Exhibits 5 and 

8, as hearsay on the finding that there was no evidence outside the emails that either Ms. 

Littlefield or Mr. Smith were acting within the scope of their employment as City Council 

members when they wrote the emails. Opinion at p. 16.

The Court should reconsider. There was testimony by Ms. Kuester and Councilwoman 

Klapp that Ms. Littlefield and Mr. Smith were city councilmembers and received emails to 

the “citycouncil@scottsdaleaz.gov” email address. The subject emails are in response to 

emails sent to that address.

Further, a review of both emails makes clear that both are addressing matters of public 

concern with constituents which is indisputably within the scope of a councilmember’s 

agency. Any doubt that Ms. Littlefield was emailing in her capacity as councilwoman is 

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foreclosed by the fact that it is signed “Councilwoman Kathy Littlefield” and is sent from 

her “klittlefield@scottsdaleaz.gov” email address. Exhibit 5 (emphasis added).

Similarly, Mr. Smith’s email is in reference to the subject “Re: Urgent Message for 

Mayor Jim Lane and City Council Members.” Exhibit 8 (emphasis added). Moreover, 

even if Mr. Smith’s email is hearsay, it is a clear statement of intent. Compare id. (“I wish 

(and intend) my deliberations on Council to be blessed and guided by God alone”) with 

FRE 803(3) (excluding from hearsay statements “of the declarant’s then-existing state of 

mind (such as motive, intent, or plan”)) (emphasis added).

As to the Court’s finding that the above are irrelevant to the analysis, opinion at p. 16, 

we respectfully disagree. We believe the above constitutional jurisprudence makes clear 

that it the inquiry is into why TST was prohibited. These exhibits further bolster the 

argument that the City’s highest officials objected to TST, not because Ms. Shortt lived 

120 miles away, but because Ms. Littlefield found TST’s equal participation to be “taking 

equality too far” and because Mr. Smith indicated an intent that his deliberations would be 

“blessed and guided by God alone.”

CONCLUSION

For a few reasons, the Court should alter or amend the judgment pursuant to FRCP 

52(b) and FRCP 59. First, the Establishment Clause analysis should be amended to focus 

on the City’s conduct, not whether Mr. Biesemeyer is personally a bigot. The “substantial 

connection” policy is essentially the opposite of the permissible Rubin policy in every 

material way.

Under Rubin, it is clear that the “substantial connection” policy fails constitutional 

muster because it lacks any neutrality-enforcing safeguards, has no inclusion element, was 

used to exclude TST–and only TST–from an otherwise all-comer policy, and is subject 

only to the arbitrary discretion of an unelected bureaucrat whose understanding of the 

policy evolved as the litigation progressed.

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Second, the opinion lacks an Equal Protection analysis. The Court should amend the 

judgment to analyze the “substantial connection” policy through any of the three 

recognized tiers of constitutional scrutiny. 

Strict scrutiny applies if the Court finds that TST’s exclusion was borne of a

majoritarian objection to TST’s religious beliefs, or if the Court finds that TST is a suspect 

class, or if the “substantial connection” policy delineates between majority and minority 

faiths.

Alternatively, intermediate scrutiny applies if the Court finds that TST’s exclusion had 

nothing to do with TST’s religious beliefs and, instead, that the policy impacts only a 

content-neutral regulation on speech or the right to travel.

Last, the emails should have been admitted because there was testimony, independent 

from the emails themselves, that the councilmembers sent the emails in the course and 

scope of their employment as councilmembers. Mr. Smith’s email, even if it is hearsay, is 

a clear statement of intent.

CERTIFICATE OF SERVICE

I certify that on February 28, 2020 I electronically transmitted this document to the 

Clerk’s Office using the CM/ECF system for filing and transmittal of a Notice of Electronic 

Filing to the appropriate CM/ECF registrants. /s/ Stuart de Haan

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