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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Satanic Temple, et al.,

Plaintiffs,

v. 

City of Scottsdale, et al.,

Defendants.

No. CV-18-00621-PHX-DGC

ORDER 

Following a bench trial, the Court entered an Order and Judgment holding that 

Plaintiffs had failed to carry their burden of proving that Defendant City of Scottsdale 

discriminated against them on the basis of their religious beliefs or identity. Doc. 92. 

Plaintiffs have now filed a motion seeking amended findings under Rule 52(b) and an 

altered and amended Order and Judgment under Rule 59. Doc. 97. Plaintiffs do not seek 

a new trial. Id. With the exception of one additional finding under the Arlington Heights 

case, the Court will deny the motion.

I. Plaintiffs’ Rubin Argument.

Plaintiffs argue that the Court should hold the City liable for violating the 

Establishment Clause because the City did not adopt formal procedures comparable to 

those discussed in Rubin v. City of Lancaster, 710 F.3d 1087 (9th Cir. 2013). The Court’s 

Order and Judgment rejected this argument:
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[The] plaintiffs in Rubin brought a very different claim than the one at issue 

here. They made a broad challenge against the City of Lancaster’s legislative 

prayer policy, arguing that it had the effect of placing the city’s “‘official seal 

of approval’ on Christianity.” Id. at 1097. Plaintiffs have never made a 

similar claim. They instead assert that they were discriminated against on a 

specific occasion. Rubin discussed the City of Lancaster’s procedures in 

deciding whether its policy was truly neutral, but it did not hold that such 

procedures are required by the Establishment Clause or are necessary to 

withstand a claim of specific-instance discrimination. The question here is 

why the City denied Plaintiffs’ invocation request. The Court has resolved 

that issue above. Rubin does not require a different result.

Doc. 92 at 17. This ruling continues to be correct.

A. Rubin Is Inapposite.

Plaintiffs assert a claim of specific-instance discrimination. They claim that the City 

discriminated against them on the basis of their religious beliefs when, on May 23, 2016,

it declined to permit their legislative invocation. This claim continues in Plaintiffs’ motion, 

where they again emphasize that “the Establishment Clause prohibits discrimination on 

religious lines” and that legislative prayers must be “nondiscriminatory.” Doc. 97 at 3-4. 

Rubin presented a classic establishment of religion claim. The plaintiffs in Rubin 

did not claim that they had been discriminated against by being denied an opportunity to 

pray. In the words of the Ninth Circuit: “The problem, they allege, is the ‘unwritten policy, 

practice and custom of the City of Lancaster’ under which the majority of city-council 

invocations have been Christian – and often explicitly so.” 710 F.3d at 1095. The plaintiffs 

claimed, in effect, that the city had established Christianity as the official religion of its

city council meetings. Id. at 1097. In deciding whether this allegation was true, the Ninth 

Circuit closely examined the city’s invocation selection procedures. It found that the 

procedures ensured that no category of religion was favored, even if the result was that a 

majority of the prayers were Christian. Id. at 1097-99. Significantly, and contrary to 

Plaintiffs’ argument, the Ninth Circuit did not hold that a city policy violates the 

Establishment Clause if it fails to match the procedures adopted by the City of Lancaster.
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Rubin is consistent with the Supreme Court’s later decision in Town of Greece, N.Y. 

v. Galloway, 572 U.S. 565 (2014). The plaintiffs in Greece made the same claim – “that 

the town violated the First Amendment’s Establishment Clause by preferring Christians 

over other prayer givers and by sponsoring sectarian prayers, such as those given ‘in Jesus’

name.’” Id. at 572. The Supreme Court rejected this argument, holding that, “[i]n light of 

the unambiguous and unbroken history of more than 200 years, there can be no doubt that 

the practice of opening legislative sessions with a prayer has become part of the fabric of 

our society” and does not violate the Establishment Clause. Id. at 576. Significantly, the 

Supreme Court did not suggest that legislative prayers are constitutional only if a city 

implements formal procedural safeguards like those described in Rubin. Quite to the 

contrary, the Supreme Court noted that the Town of Greece “followed an informal method 

for selecting prayer givers” – it used an “informal, imprecise way” of choosing who would 

give invocations. Id. at 571, 597. The Supreme Court nonetheless held the procedures 

constitutional.

The Court rejects Plaintiffs reliance on Rubin for two reasons. First, Rubin does not 

hold that a city’s invocation policy must follow certain formal procedures. And the lack 

of such a requirement was clearly confirmed by Town of Greece. Second, this is a very 

different case. Plaintiffs assert a claim of discrimination. They do not contend that the 

City’s invocations reflect a particular religious view. Indeed, they did not present evidence 

at trial concerning the contents of any prayers given before the City Council. Rubin is thus 

distinguishable.

1

 

B. The Court Properly Focused on the Sole City Decisionmaker.

Plaintiffs’ motion and reply argue that the Court’s focus in this case should be on 

the City, not on whether “Mr. Biesemeyer is, personally, a bigot.” Doc. 105. This 

argument fundamentally misstates the Court’s holding and completely disregards key 

1 The Court reached the same conclusion when it ruled from the bench on the 

parties’ summary judgment motions: “[I]t’s suggested in the briefs that the mere 

informality of Scottsdale’s policy is a constitutional violation in itself. I don’t agree with 

that. Town of Greece upheld an informal unwritten policy, and the Rubin case, although it 

described in some detail a written policy, never said that that kind of policy is required to 

pass constitutional muster.” Doc. 52 at 36. 
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factual findings. The Court’s Order and Judgment made these specific findings based on 

the evidence presented at trial:

• Mr. Biesemeyer was the acting City Manager when Plaintiffs’ request was 

denied. He possessed all powers of the City Manager, was the chief executive 

of the administrative branch, and was responsible for administration of all City 

affairs not assigned to another City officer. 

• The City Manager makes administrative decisions. The Council and Mayor do 

not direct administrative decisions. 

• The decision on whether Plaintiffs would be permitted to give an invocation was 

administrative. Mr. Biesemeyer was responsible for making the decision. No 

other person within the City had the power or duty to decide the issue. 

• After conferring with the City Attorney’s office, Mr. Biesemeyer decided to 

deny Plaintiffs’ request because they did not meet the longstanding practice of 

having a substantial connection to the City. 

• Mr. Biesemeyer did not make the decision at the direction of the City Council 

or the Mayor and did not seek their approval.

• Plaintiffs presented no evidence that Mr. Biesemeyer knew about five of the 

seven facts they cited to show that the decision was based on their religious 

beliefs – the Mayor’s campaign material, the Mayor’s email statement, Ms. 

Klapp’s editorial, and the emails of Littlefield and Smith. 

• When the credibility of Mr. Biesemeyer’s and Ms. Kuester’s testimony is taken 

into account, the Court finds that the other two items of evidence relied on by 

Plaintiffs – the thousands of emails received by the City and Ms. Klapp’s 

statement to Mr. Biesemeyer – do not prove by a preponderance of the evidence 

that Mr. Biesemeyer acted on the basis of Plaintiffs’ religious beliefs, or even 

that those beliefs were a substantial motivating factor in his decision. 

Doc. 92 at 12-17.

These findings are fully supported by the record and not contradicted by Plaintiffs’ 

trial evidence or anything contained in their motion. Plaintiffs had ample opportunity and 

a full arsenal of discovery tools to gather contrary evidence in this case, and yet they failed 

to present such evidence. They did not prove by a preponderance that the City Council or 

the Mayor made the decision; that the City Council, Mayor, or emails influenced Mr. 
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Biesemeyer’s decision; or that he acted on the basis of Plaintiffs’ religion. Plaintiffs cannot 

cover this lack of evidence simply by claiming the discrimination is obvious.

II. Equal Protection.

Plaintiffs contend that the Order and Judgment “lacks” an Equal Protection analysis. 

Not so. The Order and Judgment reached this conclusion on Plaintiffs’ Equal Protection 

claim:

“[D]iscriminatory intent or purpose is required to show a violation of the 

Equal Protection Clause.” Village of Arlington Heights v. Metro. Hous. Dev. 

Corp., 429 U.S. 252, 265 (1977); see also Ave. 6E Invs., LLC v. City of Yuma, 

Ariz., 818 F.3d 493, 504 (9th Cir. 2016) (“Under Arlington Heights, a 

plaintiff must simply produce direct or circumstantial evidence 

demonstrating that a discriminatory reason more likely than not motivated 

the defendant and that the defendant’s actions adversely affected the plaintiff 

in some way.”) (quotation marks and citation omitted).

Thus, to prevail on their Establishment Clause and Equal Protection claims, 

Plaintiffs must prove by a preponderance of the evidence that the City’s 

denial of their request to give an invocation was based on Plaintiffs’ religious 

beliefs.

Id. at 3-4. The Court then engaged in a detailed consideration of the evidence and found

that Plaintiffs had failed to prove the City’s decision was based on their religious beliefs. 

Id. at 12-18. As a result, they did not prove their Equal Protection claim.

A. The Issues Identified For And Presented At Trial.

Plaintiffs’ motion claims that this is an insufficient analysis, but this analysis in fact 

addresses the Equal Protection arguments Plaintiffs made before and during trial. Plaintiffs 

argued that an Equal Protection violation occurred because the City denied their right to 

pray on the basis of religious animus. 

In their proposed Final Pretrial Order, the parties set forth their respective positions 

on the factual and legal issues to be tried. See Doc. 73. Plaintiffs’ position was consistent 

throughout the Final Pretrial Order: “Plaintiffs contend that the ‘substantial connection’

[requirement] is a pretext to conceal the City’s religious animus.” Id. at 5. “The public 

statements made by various officials remove all doubt that there was a religious animus.” 
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Id. at 7. “The ‘substantial connection’ policy is a pretext to conceal the religious animus 

at play in prohibiting Plaintiffs, and only Plaintiffs, from participating in the otherwise allcomer policy.” Id. at 12. “The question before the Court is whether the policy was enacted 

out of religious animus[.]” Id. at 16. 

Before trial, Plaintiffs also filed Proposed Findings of Fact and Conclusions of Law

(“Findings and Conclusions) – in effect, the order Plaintiffs wanted the Court to enter after 

trial. See Doc. 72-1. Defendants did the same. See Doc. 74. Plaintiffs’ proposed Findings 

and Conclusions included only four sentences on their Equal Protection claim, and those 

sentences also keyed on the City’s alleged religious animus: 

61. The Equal Protection Clause also prohibits governmental 

disparate treatment among religions. 

62. When the policy at issue is motivated by religious animus, the 

question becomes whether it can survive strict scrutiny. 

63. The City has not offered a plausible, secular, basis for why 

Plaintiffs – and only Plaintiffs – can or should be prohibited from the 

legislative invocation ceremony. 

64. The City has thus also violated Equal Protection Clause. 

Doc. 72-1 at 6-7.

Plaintiffs closing argument at the end of trial likewise based their Equal Protection 

claim on the City’s alleged religious animus:

There is no question that religious animus [was] a substantial motivating 

factor behind the substantial connection policy. If the court takes that as true 

the burden now shifts under our Equal Protection analysis. Equal Protection 

says if you have a minority religion and religious beliefs taking part [in] the 

creation of a policy, then the government must show . . . under strict scrutiny 

[that] the government has a compelling state interest that is narrowly tailored 

to meet that end.

Court’s LiveNote Transcript, January 23, 2020, at 190.2 

2 The Court quotes from the LiveNote transcript created during the course of trial, 

rather than an official transcript, because the parties have not ordered an official transcript 
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Because Plaintiffs argued in this closing that religious animus was a “substantial 

motivating factor” in the City’s decision, the Court specifically addressed that issue in its 

order. After examining the evidence, the Court found that Plaintiffs had failed to prove 

that “Mr. Biesemeyer acted on the basis of Plaintiffs’ religious beliefs, or even that those 

beliefs were a substantial motivating factor in this decision.” Doc. 92 at 17. As a result, 

the Court found, “Plaintiffs have not carried their burden of proof.” Id.

In summary, Plaintiffs’ arguments before and during trial grounded their Equal 

Protection claim on the City’s alleged religious animus. The Court essentially adopted 

Plaintiffs’ proposed test: “to prevail on their Establishment Clause and Equal Protection 

claims, Plaintiffs must prove by a preponderance of the evidence that the City’s denial of 

their request to give an invocation was based on Plaintiffs’ religious beliefs.” Id. at 4. 

Plaintiffs, however, failed to present evidence that satisfied this test.

B. Plaintiffs’ New Arguments.

Plaintiffs’ motion takes a very different approach. It sets forth 11 pages of Equal 

Protection argument and analysis that were never included in their Final Pretrial Order, 

Findings and Conclusions, or arguments at the close of trial. See Doc. 97 at 6-16. This 

new analysis includes three levels of scrutiny – strict, intermediate, and rational basis – that 

cannot be found in the same form in the Final Pretrial Order, Findings and Conclusions, or 

trial arguments. The motion asserts that some of these levels of scrutiny should be invoked 

even if Plaintiffs have not shown that the City acted out of religious animus, and includes 

citations to more than 25 cases that were not cited in the pretrial documents or the trial and 

that do not represent a post-trial change in the law. Id.3 

At the Final Pretrial Conference – the event held to ensure that all participants were 

on the same page for trial – the Court adopted the parties’ Final Pretrial Order as the 

for the trial. The LiveNote transcript is created simultaneously with the transcription and 

has not been reviewed or corrected by the court reporter.

3 Plaintiffs never mentioned the phrase “strict scrutiny” in their Final Pretrial Order. 

See Doc. 73. They did use the phrase in their Findings and Conclusions and closing 

argument, but only in asserting that such scrutiny is triggered by a finding of religious 

animus. See Doc. 72-1 at 7, Court’s LiveNote Transcript, January 23, 2020, at 190. 
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blueprint for the trial. See Doc. 81. Rule 16 provides that the Final Pretrial Order may 

thereafter be altered “only to prevent manifest injustice.” Fed. R. Civ. P. 61(e). The parties 

were fully aware of this high bar to changing their positions – the Court emphasized at the 

Final Pretrial Conference that the issues to be tried would not be revised without meeting 

Rule 16(e)’s requirement:

I’ve read the final pretrial order. I’m going to adopt it as the final pretrial 

order in this case and, therefore, as you know under Rule 16(e) it will be the 

blueprint for the trial and issues or evidence not set forth in the final pretrial 

order can only be considered if a failure to do so would create manifest 

injustice under Rule 16(e). So this is the guide for the trial.

Court’s LiveNote Transcript, January 13, 2020, at 77.

Holding the parties to the positions and arguments set forth in the Final Pretrial 

Order is not arbitrary or unfairly limiting. The parties themselves prepared the order, and 

holding them to it enabled everyone to prepare for trial knowing all of the issues and claims 

that would be addressed. It avoided the unfairness of unexpected trial surprises and it was 

entirely consistent with the structure and intent of the Federal Rules of Civil Procedure. 

As the Supreme Court has noted, “a final pretrial order . . . supersede[s] all prior pleadings 

and control[s] the subsequent course of the action[.]” Rockwell Int’l Corp. v. United States, 

549 U.S. 457, 474 (2007) (citation and quotation marks omitted); see also Torry v. 

Northrop Grumman Corp., 399 F.3d 876, 878 (7th Cir. 2005) (“The rules contemplate that 

the complaint will be superseded by pretrial orders (see Rule 16(e)), which among other 

things will define the issues for adjudication.”). Recognizing the fairness of this approach, 

the Ninth Circuit has “consistently held that issues not preserved in the pretrial order have 

been eliminated from the action.” S. Cal. Retail Clerks Union & Food Employers Joint 

Pension Tr. Fund v. Bjorklund, 728 F.2d 1262, 1264 (9th Cir. 1984).

4

4 Among the many new arguments contained in Plaintiffs’ motion are these: The 

Satanic Temple (“TST”) is a “suspect class”; TST was subjected to a “special hurdle”; the 

City’s policy “silences speech and gives preferential treatment to residents over 

nonresidents”; the policy “impinge[s] on the exercise of a fundamental right”; TST is in a 

position of “political powerlessness”; the policy is “presumptively unconstitutional”; strict 

scrutiny is required because of the “Free Speech Clause”; “[o]nce 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 
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Plaintiffs have not met the high threshold of Rule 16(e). They have not shown that 

a failure to consider their new arguments would cause manifest injustice. To the contrary, 

permitting Plaintiffs to assert their elaborate new arguments at this late stage would be 

manifestly unjust to the City, which tried this case on the basis of issues and arguments 

framed by the parties in the Final Pretrial Order. The City was not alerted to the need to 

present evidence Plaintiffs now claim is missing. Plaintiffs cannot change their theory of 

the case after they lose, even if they now find that their original theory was flawed. 

This conclusion is entirely consistent with Rule 59(e), under which Plaintiffs seek 

to alter or amend the Order and Judgment. As the Supreme Court has explained: “Rule

59(e) permits a court to alter or amend a judgment, but it “may not be used to relitigate old 

matters, or to raise arguments or present evidence that could have been raised prior to the 

entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (quoting 

11 C. Wright & A. Miller, Federal Practice and Procedure § 2810.1, pp. 127-128 (2d ed.

1995)) (emphasis added); see also Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 

890 (9th Cir. 2000) (“A Rule 59(e) motion may not be used to raise arguments or present 

evidence for the first time when they could reasonably have been raised earlier in the 

litigation.”) (citation omitted).

The Court will not address Plaintiffs’ new arguments. Plaintiffs had ample 

opportunity to craft those arguments and preserve them for trial, but they failed to do so.

factor”; “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” (then listing seven events); the City’s actions raise various “red flags” that should 

prompt close constitutional scrutiny; the Court should apply the “‘substantial departure’ 

test”; the “Privileges and Immunities Clause . . . broadly protects the right to travel and 

prohibits [governments] from disparately treating people based on” where they live; 

“intermediate scrutiny should apply if the Court finds that TST’s religious message had 

nothing to do with its preclusion”; “cities cannot, without ‘substantial reason,’ discriminate 

in favor of their residents”; “[t]he City failed to sustain its burden to show that it studied 

the matter, found an evil, and propounded a regulation [that] makes a classification which 

shares a close relationship with curing that evil”; the policy fails even “rational basis” 

scrutiny; “the City never offered a legitimate governmental interest and never offered 

explanation for how the policy is rationally related to any legitimate interest.” Doc. 97 

at 7-15. These new issues are not “baby steps” in Plaintiffs’ Equal Protection claim, as 

Plaintiffs now contend in trying to justify their failure to raise them earlier. Doc. 105 at 7. 

These issues would fundamentally change the nature of the trial and cannot be added at 

this late date. 
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C. Further Arlington Heights Analysis and Finding.

As noted above, the Court’s Equal Protection analysis relied on the Supreme Court’s 

statement that “discriminatory intent or purpose is required to show a violation of the Equal 

Protection Clause.” Arlington Heights, 429 U.S. at 265. The Court has again read

Arlington Heights in connection with this order, and notes that the Supreme Court called 

for trial courts to determine whether discriminatory animus was a “motivating factor” in 

the governmental decision being challenged under the Equal Protection Clause. Id. at 266. 

The Supreme Court made clear that courts should consider a range of evidence in making 

this determination, including such things as the discriminatory impact of the government’s

decision, a clear pattern of discriminatory conduct, the historical background and sequence 

of events leading up to the decision, departures from normal procedures, and the testimony 

of participants. Id. at 266-68. 

The Court considered all such evidence in reaching its original decision, and has 

considered it again in connection with this order. As noted in the Order and Judgment, the 

Court found Mr. Biesemeyer and Ms. Kuester to be credible witnesses. Doc. 92 at 14-15, 

17. Plaintiffs failed to present evidence that five of Plaintiffs’ seven indicia of religious 

animus were known to Mr. Biesemeyer, and the Court found him credible when he testified 

that he did not know about them. Id. at 16-17. Further, “when the credibility of Mr. 

Biesemeyer’s and Ms. Kuester’s testimony is taken into account, the Court finds that the 

other two matters – the thousands of emails and Ms. Klapp’s statement to Mr. Biesemeyer 

– do not prove by a preponderance of the evidence that Mr. Biesemeyer acted on the basis 

of Plaintiffs’ religious beliefs, or even that those beliefs were a substantial motivating 

factor in his decision.” Id. at 17. 

The Court stands by this finding even in the light of Plaintiffs’ newly crafted 

arguments and their renewed emphasis of the unwritten nature of the City’s policy and the 

fact that it had not previously been applied to preclude a legislative prayer. Plaintiffs failed 

to contradict the City’s evidence that Mr. Biesemeyer was the sole administrator tasked 

with deciding whether they should give the invocation, that he alone made the decision, 
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that he was not influenced by and did not seek approval of the City Council or Mayor, that 

he made his decision after conferring with the City Attorney’s Office about the City’s 

existing “substantial connection” policy, and that he made his decision on the basis of the 

policy. The Court found – and finds – that the credibility of Mr. Biesemeyer and Ms. 

Kuester, as discussed more fully in the Order and Judgment, clearly outweighs Plaintiffs’ 

largely circumstantial case. Thus, to the extent Arlington Heights requires only a showing 

of a “motivating factor” – as opposed to the “substantial motivating factor” Plaintiffs 

argued at the close of trial – the Court finds that Plaintiffs have failed to prove that their 

religious views were a “motivating factor” in Mr. Biesemeyer’s decision. The Court in 

effect reaches the same conclusion that was reached in Arlington Heights: “Respondents 

simply failed to carry their burden of proving that discriminatory purpose was a motivating 

factor in the Village’s decision. This conclusion ends the constitutional inquiry.” 429 U.S. 

at 270-71. 

III. Hearsay Ruling.

Plaintiffs ask the Court, as a “simple housekeeping matter” (Doc. 97 at 16), to revisit 

its ruling that Exhibits 5 and 8 are inadmissible hearsay. The Court held that Rule 

801(d)(2)(D) was not satisfied “because Plaintiffs presented the emails alone, with no 

evidence that either Ms. Littlefield or Mr. Smith was acting within the scope of their 

employment as City Council members when they wrote the emails.” Doc. 92 at 16. The 

Court noted that, under Rule 801(d)(2), “[t]he statement must be considered but does not 

by itself establish . . . the existence or scope of the relationship under (D).” Fed. R. Evid. 

801(d)(2). This remains true. Plaintiffs’ motion asserts that there was testimony that both 

writers were members of the City Council and that the emails were received at the City’s 

email address, but those facts do not show that the writers were acting agents of the City 

when they wrote the emails. 

The Order and Judgment also cited Bennett v. Yoshina, 98 F. Supp. 2d 1139 (D. 

Haw. 2000), aff’d, 259 F.3d 1097 (9th Cir. 2001), for the proposition that “Plaintiffs’ 

reading of Rule 801(d)(2) to cover all [City] employees would mean that any [City] official 
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could always be said to be speaking on behalf of the [City] even if the statement 

intentionally contravened established [City] policy or was unrelated to the [City] official’s 

function.” Doc. 92 at 16 (quoting Bennett, 98 F. Supp. 2d at 1154). Plaintiffs do not 

address this conclusion. 

Even if Exhibits 5 and 8 were admitted, however, they would not alter the result in 

this case. As the Court noted in its Order and Judgment:

[E]ven if the emails were admitted, they would not alter the outcome of this 

case. Plaintiffs presented no evidence that Mr. Biesemeyer ever saw or knew 

about the emails or spoke with Ms. Littlefield or Mr. Smith about their views. 

Mr. Biesemeyer testified that he did not see the emails and was not influenced 

by the views of City Council members.

Doc. 92 at 16. Because the undisputed evidence shows that Mr. Biesemeyer had no 

knowledge of the emails or the views of their authors, the emails simply do not show that 

his decision was based on Plaintiffs’ religious beliefs.

IT IS ORDERED that, with the exception of the additional Arlington Heights 

finding set forth above, Plaintiffs’ Motion for Supplemental and Amended Findings of 

Fact, and to Alter or Amend the Judgment (Doc. 97), is denied.

Dated this 9th day of April, 2020.