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de Haan Law Firm, PLLC

101 E Pennington

Suite 201

Tucson, Arizona 85701

Telephone: (520) 358-4089

Facsimile: (520) 628-4275

Stuart P. de Haan, State Bar No. 26664

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Michelle Shortt and The Satanic Temple

 Plaintiffs,

vs.

City of Scottsdale, 

Defendant,

 Case No. 18-cv-00621-DGC

PLAINTIFFS’ REPLY IN SUPPORT OF CROSSMOTION FOR SUMMARY JUDGMENT

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SUMMARY

The facts are clear. The City enunciated a discriminatory intent and then precluded 

Plaintiffs from participating in an otherwise all-comer invocation policy. To justify Plaintiffs’ 

exclusion, the City relies on an obviously pretextual “policy” which ostensibly requires all 

invocation participants to have a “substantial connection” to the City. This “policy” has no 

fixed criteria, is unwritten, has no neutrality-enforcing safeguards, and the record betrays 49 

exceptions.

The law is clear. The Establishment Clause and Equal Protection Clause each precluded 

the City from discriminating against Plaintiffs on the basis of their religion. Plaintiffs are thus 

entitled to summary judgment.

ARGUMENT

1: Preliminary issues require preliminary consideration and disposal

The City raises various arguments that must be addressed and disposed of prior to getting 

to the substance of this case. This section addresses the newly raised issues.

1.1: Plaintiffs have standing

For the first time in this litigation, the City has raised the issue of standing in a reply brief 

for summary judgment. Response/reply at pp. 5-6. Standing needs to be addressed first, 

because it is jurisdictional. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

To show standing Plaintiffs must allege facts demonstrating they: (1) suffered an injury in 

fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely 

to be redressed by a favorable judicial decision. See Barker v. Conroy, No. 17-5278, 2019 U.S. 

App. LEXIS 11414, at *13-16 (D.C. Cir. Apr. 19, 2019) (citing Spokeo, Inc. v. Robins, 136 S. 

Ct. 1540, 1547, 194 L. Ed. 2d 635 (2016)).

1.1.1: Michelle Shortt has standing

Taking Plaintiffs’ side as true, Plaintiffs were excluded from an all-comer policy that 

permitted anyone to participate in a legislative prayer ceremony. This establishes an 

exclusionary “injury in fact.” Id.; see also Davis v. Guam, 785 F.3d 1311, 1315 (9th Cir. 2015) 

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(“[E]qual treatment under law is a judicially cognizable interest . . . even if it brings no tangible 

benefit to the party asserting it.”).

That exclusion was unquestionably caused by the City. Here, it is irrelevant “which agents” 

of the City participated in the exclusion because the City is the defendant. Kentucky v. 

Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 3105 (1985) (a suit against an individual in their 

official capacity is “in all respects other than name, to be treated as a suit against the entity. It 

is not a suit against the official personally, for the real party in interest is the entity.”) 

The harm can be redressed by the Court by granting injunctive relief. If the Court grants 

injunctive relief, then the City cannot discriminate against Plaintiffs for their religious beliefs. 

Michelle Shortt has pleaded facts that show all three elements of standing. She thus has 

standing.

1.1.2: The Satanic Temple has standing

The City may be questioning whether the rights of the non-party Scottsdale Satanists can 

be raised in this litigation. They can. The Satanic Temple has associational standing because 

(1) Ms. Shortt, a member, has standing; (2) the interests at stake are germane to TST’s 

organizational purpose; and (3) neither the claim asserted nor the relief requested requires 

participation of individual members in the suit. Friends of the Earth, Inc. v. Laidlaw Envtl. 

Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S. Ct. 693, 704 (2000).

1.2: The public statements are not hearsay

The City contests that the public statements relied upon by Plaintiffs are hearsay. See 

response/reply at pp. 2-3, pp. 7-8. The City is wrong for two reasons. First, the public 

statements are statements by a party opponent. See Kentucky, above; see also FRE 801(d)(2).

Second, the statements are not being used to prove “the truth of the matter asserted.” 

FRE 801(c)(2). It is Plaintiffs’ purpose to use the statements as proof of discriminatory intent, 

not proof of the underling matter. For example, when we reference Councilmember 

Littlefield’s statement, “I think this is taking equality too far,” our purpose is to show that she 

objects to equal treatment of Plaintiffs as any other religion. Doc 1-1 at p. 2. Our purpose is 

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not to show that the Constitution would permit refusing our equal participation in an 

otherwise all-comer invocation ceremony, because takes equality “too far.”

1.3: The issue is “discrimination on the basis of religion in the selection of 

speakers for legislative prayers,” not “legislative prayer” as a general matter

The City expends considerable efforts to emphasize that legislative prayer, though 

religious, is compatible with the Establishment Clause. Response/reply at p. 3 and 7-9. The 

issue raised in this case is that the City discriminated against Plaintiffs in selecting speakers for 

legislative prayers; not whether legislative prayer is constitutional as a general concept.

1.4: Islam is a “Judeo-Christian” religion

The City adamantly maintains that Islam is not “Judeo-Christian.” Response/reply at p.

15 (citing Cty. of Allegheny v. ACLU, 492 U.S. 573, 590, 109 S. Ct. 3086, 3099 (1989)). But 

Allegheny does not find that Islam is not “Judeo-Christian,” it finds that Islam is not 

“Christian.” See id. (“Perhaps in the early days of the Republic these words [the Establishment 

Clause] were understood to protect only the diversity within Christianity, but today they are 

recognized as guaranteeing religious liberty and equality to the infidel, the atheist, or the 

adherent of a non-Christian faith such as Islam or Judaism.”) Taking the City’s position 

at face value, Allegheny would also “prove” that Judaism is also not Judeo-Christian.

2: The City is liable under the Establishment Clause for a religiously 

discriminatory prayer selection process. The City’s “policy” requiring 

a “substantial connection” is merely pretextual

2.1: The “policy” is demonstrably pretextual because it lacks any neutralityenforcing safeguards

The City conflates Plaintiffs’ argument that the “policy” is an obvious pretext because the 

Mayor and Councilmembers “made statements that Plaintiffs find offensive.” Response/reply

at p. 2. Not so. The “policy” is demonstrably a pretext because it lacks any neutralityenforcing safeguards. This “policy” is constitutionally deficient for several reasons. A 

selection follows.

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The “policy” is unwritten. Deposition of Ms. Kuester at 8:13 – 8:17 (“I don’t have 

anything that was written that was given to me when I took the job”) and deposition of Mr. 

Biesemeyer at 9:11 – 9:12 (“it was not a written policy.”)

The meaning of “substantial connection” is wholly undefined. Deposition of Ms. Kuester 

at 26:13 – 26:22 (Q: “[Y]ou couldn’t tell me what a community tie is?” A: “No. I don’t have 

that information.”) and deposition of Mr. Biesemeyer at 10:18 – 10:22 (“There was no fixed 

criteria applied.”)

The “policy” has no appeals process. Deposition of Ms. Kuester at 26:13 – 26:22 (Q: “So 

you wouldn’t know if there was like an appeal process or anything if someone got denied?” A: 

“No, I wouldn’t know that right off.”) and deposition of Mr. Biesemeyer at 10:18 – 10:22 (Q: 

“[Y]ou wouldn’t know if there was an appeal process or anything like that?” A: “No, I do not 

know.”)

The “policy” is not neutrally applied. Deposition of Ms. Kuester at 29:17 – 29:20 (Q: “Had 

anyone ever been denied from giving an invocation before, to your knowledge?” A: “No.”) 

and deposition of Mr. Biesemeyer at 7:22 – 7:24 (Q: “Do you know of anyone getting denied 

before of doing an invocation?” A: “I do not.”) See also id. at 12:3 – 12:6 (this matter only 

came to the city manager’s attention because “this was unique.”)

The “policy” was unilaterally created by the city manager, and subject to his sole discretion. 

E.g. deposition of Ms. Kuester at 26:13 – 26:22 and deposition of Mr. Biesemeyer at 15:2 –

15:3 (Q: “Was that your sole discretion to deny the group?” A: “Yes.”) 

It is highly suspect that the city manager ordered the scheduling clerk to deny the 

invocation because scheduling was not within the purview of his office. See id. at 6:1 - 6:12 

(scheduling was done out of the mayor’s office, which is a different office from the city 

manager’s.) The scheduling clerk does not even report to the city manager. Deposition of 

Ms. Kuester at 4:9-4:12 and 12:21-12:25.

The policy involves no investigation process. Deposition of Ms. Kuester at 10:16 – 10:23 

(the scheduling clerk did not have a list of questions to determine a group’s “community ties” 

to Scottsdale and had no elemental concerns to satisfy) and deposition of Mr. Biesemeyer at 

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10:10 – 10:13 (the decision to deny was based on the city manager’s own knowledge of the 

community ties.)

The policy involves no verification process. Deposition of Ms. Kuester at 8:18 – 8:21 (the 

scheduling clerk had no verification system or list of questions or criteria) and deposition of 

Mr. Biesemeyer at 10:14 – 10:17 (there was no verification process of “substantial 

connection.”)

The policy undermines prior instructions to the scheduling clerk to treat Plaintiffs as “any 

other faith organization,” Deposition of Ms. Kuester at 13:10 – 13:12 (the scheduling clerk 

scheduled and rescheduled Plaintiffs because she was directed to “treat [Plaintiffs] the way I 

would treat any other organization;”) see also Doc. 1-1 at p. 8 (scheduling clerk’s email reciting 

her instructions).

Last, the policy and was only formed after City Councilmembers joined a chorus of 

objections to Plaintiffs’ participation in the invocation ceremony, and those objections 

sounded exclusively in Plaintiffs’ religion. Compare Doc. 1-1 at p. 1 (Feb. 11 - Kathy 

Littlefield’s objection); p. 10 (Mar. 16 - Suzanne Klapp’s “opinions” article); p. 12 (Mar. 22 -

David Smith’s objection) with p. 14 (May 23 – Plaintiffs are excluded); and deposition of Ms. 

Kuester at 24:20-25:7 (noting 15,207 emails voicing objections, all sent within a couple hours). 

See also deposition of Mr. Biesemeyer at 11:21 – 14:9 (Mr. Biesemeyer had a telephone 

conversation with Councilwoman Klapp before the denial. In that conversation, Ms. Klapp 

“expressed her concern for allowing it to be scheduled.”)

Far from being the “only” proof the policy was a pretext, the fact that the councilmembers 

and the mayor made contemporaneous and disparaging statements about Plaintiffs’ religious 

beliefs merely forecloses any doubt about whether the policy is a pretext.

2.2: The City’s response is unavailing

In the City’s response/reply, the City was supposed to explain the above deficiencies. 

Instead, the City faults Plaintiffs for being unable to explain how they fit within the utterly 

undefined meaning of “substantial connection.” This is an impossible task. Instead, the City 

does raises some arguments which can be easily disposed of.

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2.2.1: Both witnesses testified that physical location 

controlled the understanding of “substantial connection”

The City now claims that the definition of “substantial location” is not tied to the “physical 

location” of the permitted speakers. Response/reply at p. 12 (emphasis in original). The City 

is wrong. The scheduling clerk and the city manager both testified that physical location 

controlled the City’s understanding of “substantial connection.” See deposition of Ms. 

Kuester at 29:6 – 29:8 (Q: “ [Scottsdale Bible Church, the prototypical “acceptable” speaker] 

are physically located in Scottsdale?” A: “Correct”) (emphasis added) and id. at 29:22-23 

(“To the best of my knowledge, everyone had a connection to Scottsdale, was in Scottsdale”) 

(emphasis added); see also deposition of Mr. Biesemeyer at 8:13 – 8:18 (“[A]ll of them were 

actually in Scottsdale.”) (emphasis added).

The City, itself, even argued that the relevant determination was the physical location of 

the faith groups. See Doc. 8 (motion to dismiss) at p. 10 (“Plaintiffs do not, and cannot, allege 

that they are similarly situated to the leaders of local, Scottsdale-based faith groups who 

have given invocations in front of the City Council”) (emphasis added) and p. 11 (“Plaintiffs 

likewise fail to allege that other non-Scottsdale faith groups were not subject to the same 

facially neutral policy”) (emphasis added).

Whereas “substantial connection” initially meant “in Scottsdale,” a review of the meeting 

minutes from 2013-2018, shows 38 instances of non-Scottsdale speakers. Now that the City 

has provided records dating back to 2008, Plaintiffs have found another 11 instances of nonScottsdale speakers. In sum, 49 speakers are from outside Scottsdale. What distinguishes 

Plaintiffs from these “permissible” speakers? The only answer can be political palatability.

2.2.2: Whether the City Council developed the policy is 

irrelevant at best; at worst, it is willful ignorance

The City also appears to argue that, because the policy was not voted on by the City 

Council, it somehow absolves the City of liability. See response/reply at pp. 7-9. There are 

two problems with this argument.

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First, as explained in Kentucky v. Graham, above, the City is the defendant; not the individual 

councilmembers. It is irrelevant “which” city officer created the constitutional violation 

because the selection policy, itself, is on trial. Not particular individuals.

Second, the city council is, collectively, the direct superior of the city manager. See City 

Charter, available at https://www.scottsdaleaz.gov/council/charter, Art. 3 § 1 (“The council 

shall appoint as officers of the city the following: the city manager.”)

To suggest that the city manager did not credit an express phone conversation by 

Councilwoman Klapp, his boss, is no more than willful ignorance. See also id. (“Officers of 

the city . . . report directly to the council [and] serve at the pleasure of the council.”)

Last, the argument that the City Council “had no say” in this policy is simply wrong. 

Contrast response/reply at p. 7 with City Charter at Art. 2 § 17 (“Whenever, by any provisions 

of this charter, it is prescribed that any power, duty or procedure shall or may be exercised, 

performed or adopted in the manner established by any law of this state, and there be no 

procedure established by law therefor, then the council may prescribe the procedure.”)

As if the above left any room for doubt, it cannot go ignored that the mayor credited the 

“city” with excluding Plaintiffs when touting his accomplishments in office. Doc. 1-1 at p. 22.

2.2.3: Simpson is inapposite because it conflicts with Town 

of Greece

Again, the City heavily and erroneously relies on Simpson v. Chesterfield Cty. Bd. of Supervisors, 

404 F.3d 276 (4th Cir. 2005). Response/reply at pp. 9, 18, and 19; compare motion to dismiss, 

Doc. 8, at p. 8. In Simpson, the Fourth Circuit found a selection policy acceptable where it (1) 

required a non-sectarian message; and (2) permitted religious discrimination on the basis of 

whether the speaker was monotheistic. Simpson, 404 F.3d at 278 and 286. There are two 

problems with this.

First, Simpson conflicts with the teachings of Town of Greece that (1) governments cannot, 

consistent with the Establishment Clause, control the contents of legislative prayers; and (2) 

governments cannot, consistent with the Establishment Clause, discriminate among religions 

in the selection of speakers. Town of Greece, 572 U.S. at 580 and 585-86.

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Second, it is preposterous to propose that a governmental official can, consistent with the 

Establishment Clause, use his office to disparage a specific religion. Contrast response/reply 

at pp. 9, 18, and 19 with McCreary Cty. v. ACLU, 545 U.S. 844, 878, 125 S. Ct. 2722, 2743-13 

44 (2005) (“the Framers intended the Establishment Clause to require governmental 

neutrality in matters of religion, including neutrality in statements acknowledging 

religion.”) (emphasis added).

2.2.4: Barker is inapposite because the plaintiff stopped 

short of arguing the rules were unconstitutionally 

discriminatory

The City cites Barker v. Conroy, No. 17-5278, 2019 U.S. App. LEXIS 11414, 2019 WL 

1746154, (D.C. Cir. Apr. 19, 2019). See response/reply at pp. 6 and 7. Barker includes helpful 

discussion about the analytical framework of a post-Town of Greece legislative prayer case. But 

Barker is of little help beyond that. 

To the extent the City might be tempted to rely on Barker at oral argument, this would be 

ill-advised because the Barker plaintiff stopped short of arguing that the exclusion of a secular 

prayer violated the Establishment Clause. Id. at 28-29 (“[R]ather than disputing that the House 

interprets its rules as requiring a religious prayer, he simply argues that the rules themselves 

compel no such interpretation.”)

3: The City is liable under the Equal Protection clause because it 

imposed a special burden on Plaintiffs because of their religion

3.1: The Equal Protection clause applies

In response to the Equal Protection argument, the City begins with a mere denial that 

Equal Protection can apply. Response/reply at pp. 17-18. The Court previously overruled 

this claim in denying dismissal of Plaintiffs’ Equal Protection claim. The City cites no new 

law which would preclude finding that Equal Protection prohibits discrimination on the basis 

of religion in selecting speakers for a legislative prayer.

Instead, the law is well-settled that religion is not an acceptable basis to discriminate. E.g. 

U.S. Const. Amend. XIV § 1. A plaintiff is not limited to arguing one either Establishment 

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Clause or Equal Protection Clause. E.g. Walz v. Tax Com. Of New York, 397 U.S. 664, 696 

(1970) (Harlan, J., concurring) (“Neutrality in its application requires an equal protection

mode of analysis.”) see also Larson v. Valente, 456 U.S. 228, 234 (1982) (striking down a statute 

for violating both the Establishment Clause and the Equal Protection clause.) 

3.2: Strict scrutiny applies because Plaintiffs, a minority religious group, 

were subjected to special scrutiny because of their religion.

Strict scrutiny applies because Plaintiffs, a minority religious group, were subjected to 

special scrutiny because of their religion. The evidence is clear that Plaintiffs, and only 

Plaintiffs, were scrutinized for a “substantial connection” to Scottsdale and that the question 

about “substantial connection” only occurred to the City because Plaintiffs are “unique.” 

What made Plaintiffs unique? It is their “religion.” Doc. 1-1 at p. 12. (David Smith’s March 

22 email) (mocking emphasis in original). The objection to Plaintiffs’ physical location did not 

arise until after the “substantial connection” policy was invented. Compare Doc. 1-1, preMay 23 at 3:29 pm, and post-May 23 at 3:29 pm; c.f. id. at p. 10 (it is no coincidence that 

Suzanne Klapp both (1) floated the idea that a new selection rule focus on “an established 

physical location” in Scottsdale and (2) “voiced her concerns” to the city manager).

In its response, the City assumes its conclusion that the policy was not a pretext. 

Response/reply at pp. 18-19 (“Because the only undisputed material facts prove that Plaintiffs 

were excluded for lacking a substantial connection to Scottsdale and not because of their 

religious beliefs.”)

The problem with this assumption is that there is a prima facie showing that the policy is 

pretextual. At that point, strict scrutiny attached. Plyler v. Doe, 457 U.S. 202, 216-17, 102 S. 

Ct. 2382, 2394-95 (1982). 

The City relies on Honolulu Weekly, Inc. v. Harris, 298 F.3d 1037 (9th Cir. 2002) to support 

its proposition that rational basis review applies. The problem with relying on Honolulu is that 

in Honolulu, there was “no indication” that the regulation in question was designed to favor 

programming of particular subject matter, viewpoint, or format. Id. at 1044. Here, there is 

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significant evidence that Plaintiffs’ status as a “religion” informed the objections. See generally 

Doc. 1-1. Strict scrutiny thus applies.

3.2: Plaintiffs need not prove hate to support a religious discrimination 

claim

Assuming the Court agrees that strict scrutiny applies, the City loses because it has failed 

to sustain its burden to prove its justification with objective evidence. See Plyler, above. 

Instead, the City appears to argue that it is entitled to summary judgment because none of the 

witnesses admitted under oath to a religious animus behind the exclusion. E.g. response/reply 

at pp. 16-17.

But Plaintiffs have no such burden because the City has the burden to prove its justification 

with objective evidence. See Hassan v. City of N.Y., 804 F.3d 277, 305-06 (3d Cir. 2015) (“the 

burden of justification under both intermediate and strict scrutiny is demanding and rests 

entirely on the State”) (internal quotations omitted) (citing United States v. Virginia, 518 U.S. 

515, 533, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996) and Fisher v. Univ. of Tex. at Austin, 133 S. 

Ct. 2411, 2419, 186 L. Ed. 2d 474 (2013)).

Even still, the City conflates “intent” with “motive.” As explained best in Hassan, above, 

“intentional discrimination” need not be motivated by “ill will, enmity, or hostility” to 

contravene the Equal Protection Clause. Hassan, 804 F.3d at 298 (3d Cir.) (citing Cmtys. for 

Equity v. Mich. High Sch. Athletic Ass'n, 459 F.3d 676, 694 (6th Cir. 2006) and Garza v. County of 

Los Angeles, 918 F.2d 763, 778 n.1 (9th Cir. 1990) (Kozinski, J., concurring in part and 

dissenting in part)).

The relevant evidence shows that governmental officials objected to Plaintiffs’ status as 

Satanists. Doc. 1-1 at p. 2 (“Personally, I like having the prayers, do NOT want the Satanists, 

and I think this is taking equality too far;”) Id. at p. 12 (“Please be assured I share your 

sentiments. I am informed permission was given, relying on a Supreme Court opinion that 

this ‘religion’ is protected by the First amendment...an absurd notion, even if not surprising. 

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

at p. 10 (“I do not welcome a Satanist group;”) and at p. 17 (“Stopped so called ‘Satanists’

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from mocking City Hall traditions with a ‘prayer.’”) and at p. 22 (“This group’s thinking is 

that cities want to avoid any possible conflicts and would choose to do away with traditional 

invocations rather than allow someone to extol the virtues of Satan before a city council 

meeting. . . . In Scottsdale we’ve decided to keep our traditional invocations and we’ve 

decided to send this Satanist sideshow elsewhere . . . Some say just let them do a ‘Satanic

Prayer’ and walk out. That’s not good enough. Rather than walk out, we’re standing up to 

this ridiculing of religion. Some things are worth fighting for”) (emphasis added).

3.3: The “policy” fails to pass strict scrutiny

The final outstanding question in an Equal Protection case is determining whether the 

policy is “precisely tailored to advance a compelling government interest.” E.g. Plyler, 457 U.S. 

at 217, 102 S. Ct. at 2395. Here, the selection policy fails to be “precisely tailored to advance 

a compelling governmental interest” because it has no neutrality-enforcing safeguards.

The City’s proffered justification again assumes its own conclusion. See response/reply at 

pp. 18-19 (“The City has a rational basis in limiting its speakers to those with a connection to 

the community.”) Stated differently, the City’s argument for a “compelling government 

interest” is “requiring a substantial connection is compelling because we say so.” As with the 

pretext issue, the City demands Plaintiffs prove a negative. This is still an impossible task.

CONCLUSION

Despite all its nuances, this case can be reduced to an issue of timing. This case would be 

difficult if the City had created a selection policy that had some neutrality enforcing safeguards 

and required a “substantial connection” to Scottsdale before Plaintiffs requested placement 

on the speakers list. Instead, the City created its selection policy in response to Plaintiffs’ 

request, with a preexisting stated purpose of excluding Plaintiffs on the basis of their religion. 

This, they cannot do.

[remainder intentionally left blank; signatures and certificate following]

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Respectfully submitted on May 17, 2019,

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

100 N Stone Avenue, Suite 512

Tucson, Arizona 85701

Kezhaya Law PLC

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

CERTIFICATE OF SERVICE

I certify that on May 17, 2019 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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