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SCOTTSDALE CITY ATTORNEY’S OFFICE

3939 North Drinkwater Boulevard

Scottsdale, Arizona 85251

Telephone (480) 312-2405

Stephanie Heizer (SBN 023261)

legal@scottsdaleaz.gov

Attorneys for City Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

The Satanic Temple and Michelle Shortt,

Plaintiffs,

vs.

City of Scottsdale, Arizona, by its City Council, 

consisting of the Mayor and council members, 

WJ Jim Layne, Suzanne Klapp, Virginia Korte, 

Kathy Littlefield, Guy Phillips, David Smith,

Defendants.

Case No. CV 18-00621-PHX-DGC

DEFENDANTS’ REPLY IN 

SUPPORT OF MOTION FOR 

SUMMARY JUDGMENT AND 

RESPONSE TO PLAINTIFFS’ 

CROSS-MOTION FOR 

SUMMARY JUDGMENT

The City of Scottsdale submits its Reply in support of its Motion for Summary Judgment 

and Response to Plaintiffs’ Cross-Motion for Summary Judgment. Because the material facts

demonstrate the City’s legislative prayer practice complies with Supreme Court precedent, and 

Plaintiffs have no substantial connection to the City, the City is entitled to summary judgment.

I. PLAINTIFFS’ STATEMENT OF MATERIAL FACTS

1. Plaintiffs’ “Material Facts” (Doc. 33-4). Although the facts themselves are not 

disputed, the parties disagree about which facts are material to this Court’s decision. A fact is 

“material” for summary judgment only if it might affect the outcome of the case. Fed. R. Civ. 

P. 56. Thus, the material facts are those that relate to the historical and current prayer practice, 

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including the stated reasons for excluding Plaintiffs from giving the legislative invocation. 

Plaintiffs have no evidence to support their claim that the City’s practice violates the 

Establishment Clause.0F

1 Harper v. Poway Unified Sch. Dist., 545 F.Supp.2d 1072, 1077 (S.D. 

Cal. 2007), aff’d in part, 318 Fed.Appx. 540 (9th Cir. 2009) (absence of evidence from nonmoving party can establish grounds for summary judgment.). Plaintiffs’ Response/Cross Motion 

focus on non-material facts,1F

2 basing their claims on two primary theories: (1) that because

Mayor and Councilmembers made statements that Plaintiffs find offensive, the City’s unwritten 

legislative prayer practice is pretextual; and (2) because no other group had been excluded from 

giving the invocation, the City’s practice is discriminatory and disparages Plaintiffs’ faith. 

Neither theory is supported by the record. 

2. Affidavit of Michelle Shortt (Doc. 33-3). For the first time in this suit, The Satanic 

Temple (“TST”) alleges it has unidentified “members” in Scottsdale, through the Affidavit of 

its chapter co-head, Plaintiff Michelle Shortt. Doc. 33-3 at ¶¶ 7, 15. The mere alleged existence 

of unidentified TST members that reside in Scottsdale cannot change the Court’s analysis. Valley 

Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 

464, 486–87 (1982) (Mere fact that a group has “certain unidentified members” residing in the 

locale does not establish a cognizable injury where none existed before.). Moreover, Ms. Shortt

would not be permitted to testify as to how those members feel (Doc. 33-3, ¶ 15), and the Court

 

1 Plaintiffs have abandoned allegations that secular prayer and references to phrases religious 

phrases, such as “Jesus Christ”, can form the basis for a constitutional violation. Doc. 33 at p. 9. 2 The City’s response to the material facts identified by Plaintiffs is attached as Exhibit “1”.

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should not consider those statements in its determination. Fed. R. Civ. P. 56; Fed. R. Evid. 801; 

U.S. v. Dibble, 429 F.2d 598, 601-02 (1970).

II. THE CITY’S PRAYER PRACTICE COMPLIES WITH SUPREME COURT

PRECEDENT

Legislative prayer, while religious in nature, has long been understood as compatible with 

the Establishment Clause. Marsh v. Chambers, 463 U.S. 783 (2014). Any test as to the 

Constitutionality of the legislative prayer practice must be by reference to historical practices 

and understandings. Town of Greece, N.Y. v. Galloway, 572 U.S. 565 (2014) (internal citations 

and quotations omitted). There is no requirement that the City’s legislative prayer practice be in 

writing. Town of Greece, 572 U.S. at 571 (“town followed an informal method for selecting 

prayer givers” from congregations listed in local directory). There is no Constitutional violation 

if the invocations contain words like “Holy Spirit” or “Jesus Christ”. Id. at 582. There is no 

Constitutional requirement that non-Christian participants be involved in giving the legislative 

prayer. See e.g. Marsh, 463 U.S. 783 (Nebraska legislature paid same Christian-based chaplain 

for 16 years to give invocations). Nor does the Constitution “require [a City] to search beyond 

its borders for non-Christian prayer givers in an effort to achieve religious balancing.” Town of 

Greece, 572 U.S. at 585-586 (specifically disapproving of the appellate court’s determination 

that “[t]he town's failure to promote the prayer opportunity to the public, or to invite ministers 

from congregations outside the town limits, all but “ensured a Christian viewpoint.”). 

Accordingly, it is likewise constitutional to limit the pool of speakers to those with a substantial 

connection or established presence in the local community. Id. at 585-586 (policy constitutional 

where speakers were chosen from local directory).

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The City has a long history2F

3 of opening its Council meetings with religious invocations. 

Doc. 33-4, ¶ 1. Historically, nearly every participant in this ceremony was Christian, albeit from 

numerous different sects. Doc. 33-4, ¶ 2; see also Doc. 32-4, 32-5. The speakers were selected 

by invitation from a list handed down to an administrative employee, Kelli Kuester, and no 

written policy has ever been formalized. Speakers came from the area in and around Scottsdale. 

Doc. 33-4, ¶ 4. Ms. Kuester’s role was to contact individuals on the list and schedule invocations. 

Plaintiff TST was the only group to proactively reach out to the City and seek to give an 

invocation. Doc. 33-4, ¶ 5. As such, Ms. Kuester was instructed to schedule Plaintiff Shortt as 

she normally would. The City did not investigate the beliefs of TST or what Plaintiff Shortt 

would say if she gave the invocation. Doc. 33-4, ¶ 9. Ms. Shortt cancelled on the date she was 

originally scheduled. Doc. 33-4, ¶ 11. At TST’s request, the date was tentatively rescheduled for 

July 6, 2016. Id. During the period between the first and second scheduling, the acting City 

Manager, Brian Biesemeyer investigated the City’s historical legislative practice. He discovered 

that TST and Plaintiff Shortt were based in Tucson. Doc. 32-3, 16:1-7. Thereafter, on or before 

May 23, 2016, Mr. Biesemeyer directed Ms. Kuester to notify Plaintiff that she would not be 

allowed to give the invocation due to Plaintiffs’ lack of substantial connection to Scottsdale. 

Doc. 33-4, ¶ 15. Mr. Biesemeyer’s uncontradicted testimony is that he was solely responsible 

for the decision and he made it because “the City was not going to deviate from [its] longstanding 

practice” of having invocations that were given “by a group that had a connection with 

 

3 Plaintiffs imply that the “earliest record” available regarding the legislative prayer practice is 

from 2013. Doc. 33-4, p. 1:15-16. However, during discovery the City produced invocation logs 

beginning in 2008. See Exhibit “2”, invocation logs dated 2008 through 2012. 

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Scottsdale.” Doc. 32-2, 19:6-10. He also testified that he was not aware of the statements the 

Mayor or Councilmembers made about Plaintiffs and that if Plaintiffs had a substantial 

connection to the City, “it would have been a different decision.” Doc. 32-3, 14:19-21,15:22-

25; 21:25-22:20. 

The Arizona Chapter of the Satanic Temple and Plaintiff Michelle Shortt have never 

identified a substantial connection to Scottsdale. Doc. 32-2, 30:5-13; See Exhibit “3”, Plaintiffs’ 

Mandatory Initial Disc. at 2:1-15. The TST Chapter did not exist in Arizona at the time Plaintiff 

Shortt made the request to give the invocation in February 2016. Doc. 33-3 at p. 2, ¶ 6. The 

newly formed TST Arizona Chapter is based in Tucson (Pima County), where Ms. Shortt lives. 

Doc. 1-2; Doc. 33-3 at p. 2, ¶ 6. There is no support for the proposition that the City had an 

affirmative duty to seek out a connection between TST and Scottsdale, once it found out the 

organization is based in Tucson. It is these facts that this Court must apply to the existing, wellestablished Supreme Court precedent on the constitutionality of legislative invocations.

III. ARTICLE III STANDING 

If the City is constitutionally permitted to limit its selection of invocation givers to those 

with a substantial connection to the City, the Court must address whether Plaintiffs have Article 

III standing. Catholic League for Relig. and Civ. Rights v. City and County of San Francisco, 

624 F.3d 1043, 1049 (9th Cir. 2010) (court must ensure standing before reaching the merits of 

a case). Standing requires a plaintiff to prove: (1) an injury in fact, (2) a causal connection 

between the injury and the complained of conduct, and (3) a likelihood that the injury will be 

redressed by a favorable decision. Id.; Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104, 

(1998) (burden of proof on standing). Not all constitutional provisions are enforceable by any 

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citizen simply because “citizens” are the general beneficiaries of the constitutional protections. 

See Valley Forge, 454 U.S. at 485; see also Catholic League, 624 F. 3d at 1048 (noting that a 

Protestant in Pasadena would not have standing to challenge an anti-Catholic statute passed by 

the City of San Francisco).

It is evident that even if the City’s prayer practice is found unconstitutional on some 

ground other than the substantial connection requirement, Plaintiffs cannot show an injury that 

would be redressed by a decision in their favor. See e.g., Barker v. Conroy, -- F. 3d --, No. 17-

5278 2019 WL 1746154, at *9 (DC Cir. Apr. 19, 2019) (where plaintiff claimed he was 

discriminated against by being excluded from giving invocation because he was atheist, court 

found plaintiff would not be entitled to any relief, even if it were true, because House could 

permissibly limit its opening prayer to religious prayer). Because Plaintiffs have no substantial 

connection to Scottsdale, the Court could not order it to allow Plaintiffs to deliver the invocation.

IV. THE CITY’S LEGISLATIVE PRAYER PRACTICE IS NOT PRETEXUTAL OR 

DISCRIMINATORY 

Even if the case is not resolved due to Plaintiffs’ lack of ties to the community, the facts 

show that the City’s historical and present practice is not pretextual or discriminatory.

A. Choosing Acceptable Prayer

Plaintiffs rely primarily on the allegedly “candid” statements made by the Mayor and 

Councilmembers, asking the Court to find that these statements prove a Constitutional violation.

Courts may consider statements of government officials who enact legislation when determining 

the purpose of legislation under the Establishment Clause. See e.g., Freedom From Religion 

Found., Inc. v. Chino Valley Unified Sch. Dist. Bd. of Educ., 896 F.3d 1132, 1143 (9th Cir. 

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2018). Establishing “purpose” of legislation is one of the prongs of the three-prong test that the 

Supreme Court established in Lemon v. Kurtzman, 403, U.S. 602 (1971). But the Lemon test is 

not applied to legislative prayer cases. See e.g., Barker, 2019 WL 1746154, at *7. (recognizing 

that Marsh eschewed reliance on the Lemon test); Freedom From Religion Found., Inc., 896 

F.3d at 1143 (in deciding school board prayer violated Establishment Clause, court applied the 

Lemon test only after it distinguished Marsh and Town of Greece, finding that they did not apply

because school board was not a “legislative” body).

This Court is bound to apply Marsh and Town of Greece to these facts. The critical 

question is whether the City’s practice comports with the directives set out therein. The 

undisputed testimony here is that the City Manager decided to prohibit Plaintiffs from giving 

the invocation after he found that the organization was based in Tucson with no connection to 

Scottsdale. Doc. 32-3, 16:1-7. The Mayor and Councilmembers had no say in the matter and 

thus their statements are immaterial. Id. at 14:22-15:1; 17:24-18:2. Moreover, Plaintiffs lack 

foundation for those statements and they are inadmissible. U.S. v. Dribble, 429 F.2d at 602 

(“foundation laid for receiving a document in evidence by testimony of witness with personal 

knowledge”). Even if the Court considers the statements, when they are read in the context in 

which they were made, they do not support a finding that the Mayor or Council either: (1)

enacted the City’s historical legislative prayer practice; or (2) directed how it was applied to 

Plaintiffs. 

Councilmember Klapp: As to the “opinions” article (Doc. 1-1 at 10) published in the 

Scottsdale Independent, Ms. Klapp plainly acknowledges she has no say in whether TST gives 

an invocation. In fact, she indicates she will exercise her personal right to leave the meeting “if 

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they do come.” While she acknowledges that she would prefer the City adopt a written policy, 

she does not deny the existence of the informal policy that could allow TST to give the 

invocation. The article obviously expresses her personal opinions. 

Mayor’s campaign documents: The City questions the Court’s ability to even consider 

these documents because they are inadmissible hearsay and lack foundation. Fed. R. Civ. P. 56; 

Fed. R. Evid. 801; Dibble, 429 F.2d at 602. There is nothing in the record to establish the date 

of these materials,3F

4 how they were distributed, or that they were written by the Mayor (as 

opposed to a campaign advisor or manager). Even so, the statements were obviously part of a 

re-election campaign, and by their very nature are political speech, not attributable to the Mayor 

as being made in his official capacity, or as an official statement of the City. 

Councilmember emails: The remaining two statements attached to Plaintiffs’ Complaint

were made by two Councilmembers in response to citizen emails concerning Plaintiffs being 

scheduled to give an invocation. Doc. 1-1 at pp. 2, 12. For instance, the statement made by thenCouncilmember Smith [Doc. 1-1 at p. 12] was made in response to a single citizen in an email–

and acknowledges the person’s concerns, while denying he had any say in the scheduling: “I am 

informed that permission was given, relying on a Supreme Court opinion...” Doc. 1-1 at p. 12.

Similarly, Councilmember Littlefield’s responsive email states: “the Council hasn’t had a say 

on this issue one way or another.” Doc. 1-1 at p. 2. 

Moreover, the content of the statements does not support the inference that these officials 

were involved in establishing the City’s legislative prayer practice or creating the list of 

 

4 They were likely created in the fall of 2016, well after the events here occurred, during campaign 

season and distributed before the November mayoral election.

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invocation givers utilized by Ms. Kuester to schedule. These are elected officials, who regularly 

address and respond to their constituents. As far as council meetings are concerned, the Council 

could only have made the substantive rules about how speakers are chosen in an open meeting.

See A.R.S. § 38-431.01 (“All legal action of public bodies shall occur during a public meeting.”). 

Thus, while they can make the procedural decisions regarding how council meetings are 

conducted, such as whether to have an invocation at the beginning of a Council meeting, the 

record does not contain evidence that Council established the City’s legislative prayer practice.

Plaintiffs’ only claim against the City involves a challenge to its legislative prayer 

practice. Doc. 1 at p. 7, ¶ 43. Their claim of “disparagement” in this context is not well founded

as they rely solely on the statements described above that were not made during the legislative 

prayer, or even during a Council meeting. “Disparagement”, in this context refers to invocations

that, over time “advance or disparage” a particular faith. Marsh, 463 U.S. at 794–95 (“[t]he 

content of the prayer is not of concern to judges where . . . there is no indication that the prayer 

opportunity has been exploited to . . . advance [or] disparage any other, faith or belief.”). This 

record is bare as to the content of any legislative prayers that disparaged Plaintiffs’ faith.

Rather, Plaintiffs’ play is an emotional one, seeking to invalidate the City’s practice based 

upon allegedly “offensive” statements. However, not every such statement gives rise to a 

constitutional violation. For instance, the Wiccan plaintiff in Simpson v. Chesterfield County Bd 

of Sup’rs, complained that the county’s act of excluding her from giving an invocation was 

discriminatory because one board member, without knowing what Wicca was, called the faith a 

“mockery” and stated, “I hope she’s a good witch like Glenda.” 484 F.3d 276, 288, 290, n. 4 (2005). 

While the court noted that these statements may be ill-advised and disrespectful, they did not 

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override that the county had a “broad and inclusive legislative invocation practice” and did not 

create an Establishment Clause violation. Id. Likewise, the statements made here may be perceived 

by Plaintiffs as disrespectful, but given the absence of facts to imply that the officials knew anything 

about Plaintiffs’ religious beliefs, and in light of the fact that the decision to prohibit Plaintiffs from 

participating was not made by them, the remarks do not form the basis for a constitutional violation.

B. The City’s Practice is not “pre-text”

1. Historical practice. The City’s historical practice of scheduling invocations

existed long before Plaintiffs came around. The policy could not have been formed as a pre-text 

to exclude Plaintiffs as the records date back to at least 2008. While Councilmember Klapp 

expressed an opinion desiring to adopt a written policy on the subject–that fact does not establish 

that the City’s existing historical practice was created as a pre-text. The case relied upon by 

Plaintiffs, Ruben v. City of Lancaster, does not support a different conclusion. There, plaintiffs 

sued because they attended a Council meeting where the speaker had invoked the name “Jesus.” 

710 F.3d at 1091. They challenged the content of the prayer, as well as the City’s practice. Id. 

at 1090. The court found plaintiffs had no claim based upon the utterance of the word “Jesus.” 

Id. at 1095. The finding is consistent with the Supreme Court’s later holding in Town of Greece.

The court also upheld Lancaster’s written policy. Id. at 1101-02. The policy consisted of 

many provisions, including directives that no one was required to participate in prayer, neither 

the council nor the clerk could engage in any review of the content of the prayer, and the clerk 

had never removed a congregation’s name from the list of invitees who were chosen from 

religious congregations with an “established presence” in Lancaster. Id. at 1097-1099. Those 

congregants received mailers inviting them to participate. Id. at 1089. While approving of this 

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neutral policy, the court did not seek to prescribe constitutional “minimums” as to what might 

be required for compliance with the Establishment Clause.4F

5

The first holding plainly undermines Plaintiff Shortt’s claim that the City’s “sectarian 

invocations” and references to “Jesus” violate her “First Amendment rights to religious liberty”, 

particularly where she has never alleged that she attended a Council meeting. Doc. 1 at p. 3, ¶ 

10, 18. Indeed, Plaintiffs appear to have ceded that argument. See n. 1, supra. The second 

holding also does not assist Plaintiffs. While Lancaster chose to mail an invitation to local 

congregants with an established presence, there is no indication the court’s finding turned on 

that decision. Even if sending a mailer (or other form of affirmative contact) were

constitutionally required, Plaintiffs’ claims would fail. If the City were to send a mailer to those 

with an “established presence” in Scottsdale, Plaintiffs would not be on that list, based on the 

facts before this Court. 

2. Inquiry into speaker. Plaintiffs argue the City impermissibly made an “inquiry 

into the speaker” contrary to the policy approved in Lancaster. Id. at 1097 (where policy directed 

city employees not to engage in inquiry into the “content of the prayer to be offered.”). That 

case prohibited inquiry into the prayer content, not the speaker and is thus inapplicable. Even 

so, Plaintiffs’ organization is called “The Satanic Temple” and that fact was plainly disclosed to 

the City in the email regarding scheduling. Doc. 1-1 at p. 4. And even though Mayor and 

Councilmembers later made statements that disapproved of the “Satanists”, they did so without 

reference to any particulars about Plaintiffs’ beliefs. The name - The Satanic Temple - possibly

 

5 The written policy considered by the Court had been recently enacted. Id. at 1089. The Court 

did not decide the constitutionality of the city’s previous unwritten policy. 

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conjures stereotypical images about what its beliefs might be–but Plaintiffs seem to use this

stereotype to further their goals. 5F

6

 

Plaintiffs also challenge the City’s selection procedures, arguing that other speakers have 

been located outside the city limits. Doc. 33 at 7:14-16. The City Manager, who researched the 

City’s prayer practice, never testified that each invocation giver must have an address or 

physical location in the City. A number of speakers have been from “outside” the City’s 

corporate limits—38 according to Plaintiff. Doc. 33 at 7:14-16. This does not establish as a 

matter of law that those speakers had no substantial ties to the community, and the record gives 

no basis to imply otherwise. The City Manager testified that no set criteria were in place because 

the City had “never had a request [from someone] outside of the Scottsdale” community, and 

that he would make the determination based upon the relationship between the [invocation giver] 

entity and the City of Scottsdale.” Doc. 32-3 at 9:2-10:22; see also Doc. 32-2 at 10:6-11.

Likewise, Ms. Kuester’s regular practice of scheduling the speakers from the existing list 

of invocation givers does not imply improper motives. See e.g., Town of Greece, 572 U.S. at

597 (Alito, J., concurring) (“The informal, imprecise way in which the town lined up guest 

chaplains is typical of the way in which many things are done in small and medium-sized units 

of local government.”). It makes sense that Scottsdale has not previously dealt with this issue. 

Why would an organization, not from within the community and having no obvious interest in 

the decisions made by the local government, request to give an invocation? 

 

6 One of Plaintiffs’ stated organization missions is to separate religion from politics. See 

https://thesatanictemple.com as referenced in Doc. 33-4, at 2, ¶¶ 6-7: “Anti-authoritarian and 

democratic in principle, The Satanic Temple disregards Social Darwinism and engages directly 

in politically charged campaigns to fight back against theocratic impositions into politics.”

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3. No categorical exclusion of faith. Finally, Plaintiffs allege the City’s policy is 

a pre-text because it “categorically excluded” their faith. The undisputed testimony shows that

once the City Manager determined that Plaintiffs were Tucson-based, he made the decision to 

deny their request to give an invocation. That is the extent of record surrounding the City’s 

historical practice of excluding “Satanists.” As discussed above, the record does not support an 

inference that the officials, whose statements Plaintiffs find so offensive, created the practice 

that the City utilizes to select speakers. The City Manager also did not create the practice, but 

merely identified the historical practice. Doc. 32-3, 8:21-9:10. Further, he testified that if 

Plaintiffs had a substantial connection to the City, “it would have been a different decision.”

Doc. 32-3, 21:25-22:6.

Neither the Eleventh, nor the Fourth Circuit cases cited by Plaintiff are on point. In 

Pelphrey v. Cobb City, the court affirmed a finding that, for a period of time, the commission’s

selection process for scheduling prayer givers “categorically excluded” certain faiths because 

the copy of the local Yellow Pages the clerk relied on to “compile the list of potential speakers

. . . had [lines drawn] through certain categories of faiths, including ‘Churches–Islamic,’

‘Churches–Jehovah's Witnesses,’ ‘Churches–Jewish,’ and ‘Churches–Latter Day Saints.’” 547 

F.3d 1263, 1267, 1279-80, 1282 (11th Cir. 2008). During the offending two-year time period, 

no one from any of these “crossed out” faiths had given a prayer. Id. at 1279. One can hardly 

imagine better evidence of intent to exclude certain faiths located within the community. At the 

same time, the court approved the prayer selection process in place during a different time frame 

where prayers were offered by members of the Jewish, Unitarian, and Muslim faiths, who had 

an established presence in the community. Id. at 1277. The Court stated, “this diversity of 

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speakers, in contrast with the chaplain of one denomination allowed in Marsh, supports the 

finding that the County did not exploit the prayers to advance any one religion.” Id.

Likewise, the holding in Lund v. Rowan City, N.C., does not provide meaningful 

instruction. 863 F.3d 268 (4th Cir. 2017) en banc, cert. denied, 138 S. Ct. 2564 (2018). There, 

the county’s board of commissioners personally led the invocations and referenced “one and 

only one” faith for years on end, instead of inviting members of the community. Id. at 272. Three 

long-time residents of the county, who had attended multiple meetings, filed suit. Id. at 273. The 

Fourth Circuit, using Marsh and Town of Greece as its guideposts, found that the practice 

violated the Establishment Clause in part because the elected representatives so clearly identified 

with a single faith, year after year. Moreover, the court analyzed specific examples of the content 

of the prayers to determine that over time, the prayers and situation implied that the “adherents 

of other faiths were in some ways condemned.” Id. at 285. The case is clearly distinguishable

because it involves a discussion of the content of prayers given by the elected officials of the 

same faith, over the course of many years.

These holdings do not support Plaintiffs’ claims that they were “categorically excluded” 

based on their religious beliefs. Supreme Court precedent does not require a local government 

to open its legislative prayer opportunity to anyone that asks; the opposite is true. Town of 

Greece, 572 U.S. at 585-586 (town not required to look beyond its borders for prayer givers). 

C. Prior Invocation Givers – Judeo vs. Non-Judeo Christians

Plaintiffs point to the City’s listed prayer givers as all Judeo Christian and theorize a 

nefarious motive, claiming the City either intentionally mis-categorized certain religions as nonCase 2:18-cv-00621-DGC Document 37 Filed 04/29/19 Page 14 of 21
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Christian6F

7

, or by inviting a Native American to give an invocation after Plaintiffs made their 

request. The record does not support any finding other than a diversity of faiths have given 

invocations before the City Council, both before and after Plaintiffs made their request. Doc. 

32-5. Plaintiffs condemn the City, stating: “State has presented no evidence to suggest that any 

non-Judeo-Christians were ever invited.” The City does not have the burden to ‘present 

evidence’ that it invited non-Judeo Christians, even if that were a constitutional requirement. 

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (summary judgment may be granted upon

showing absence of evidence to support the opposing party’s case); Marsh, 463 U.S. 783

(Nebraska legislature paid same Christian-based chaplain for 16 years to give invocations).

Plaintiffs’ lack understanding on the issue as they erroneously focus on the faith of the speaker

rather than the content of the prayer. City of Lancaster, 710 F.3d at 1099–100 (focusing on 

“policy’s neutrality . . . not on the number of volunteers from a particular sect.”) (internal 

citations and quotations omitted).

Even if the Court considers the religious “identity” of the past speakers in this case, the 

record lacks evidence that those persons listed in the City’s log of invocation givers (Doc. 32-

4), and the speakers who have given invocations (Doc. 32-5) would not adequately represent

those faiths with a substantial connection to the Scottsdale community. See e.g., Town of Greece, 

572 U.S. at 585–86 (so long as policy is not discriminatory, “the Constitution does not require 

[town] to search beyond its borders for non-Christians”). 

 

7

 The Supreme Court has also referred to “Islam” as “non-Christian.” See County of Allegheny 

v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 590 (1989),

abrogated by Town of Greece, N.Y. v. Galloway, supra. 

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The Complaint seems to imply that the “State” of Arizona is the relevant local community 

for this Court’s analysis. Doc. 1 at p. 4, ¶ 15 (“meetings are open to the public and are a primary 

means for State citizens to observe and participate in ... local government.”). The law does not

support this proposition. The considerations of local governments are vastly different than those 

of State or Federal government. The reasonable inference from Scottsdale’s policy that there be 

a ‘substantial connection’ is to make sure the City includes those who have an interest in the 

outcome of the City Council’s actions. See e.g., Town of Greece, 572 U.S. at 586 (“Citizens 

attend town meetings . . . to accept awards; speak on matters of local importance; and petition 

the board for action that may affect their economic interests.”). It is a stretch of common sense 

to assume Plaintiffs, based out of Tucson (Pima County) have such an interest in these local 

government affairs, or even the standing to challenge the City’s policy. Valley Forge, 454 U.S. 

at 484–86 (where plaintiffs fail to identify any personal injury suffered as a consequence of the 

alleged constitutional error, other than the psychological consequence presumably produced by 

observation of conduct with which one disagrees, there is no injury sufficient to confer standing).

Additionally, the logical extension of a holding in Plaintiffs’ favor is that, as a matter of law, 

any City or Town in Arizona that begins council meetings with legislative prayer is 

Constitutionally required to allow Plaintiffs to give the invocation. Established precedent 

contradicts such a finding. See, e.g., Town of Greece, 572 U.S. at 585-586; City of Lancaster,

710 F.3d at 1089.

D. City did not probe into the content of Plaintiffs proposed invocation

Plaintiffs’ final Establishment Clause argument is that the City “incurred liability because 

it precluded TST an equal opportunity to say ‘Satan’” while inviting others to say “Jesus”. Doc. 

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33 at 10:14-19. While a novel idea, Plaintiffs have no facts to support that the City knew 

Plaintiffs planned to say “Satan” during the invocation. The uncontradicted testimony is that the 

City does not inquire into the content of invocation and did not do so here. Plaintiffs even fault 

the City for not investigating TST, beyond the fact of determining that it and Plaintiff Shortt 

were based in Tucson. Docs. 33-3 at p. 2, ¶ 9; 33-4 at p. 3, ¶ 11-12. The City’s prayer practice 

based upon content of prayers is not properly before this Court.

V. THE EQUAL PROTECTION ANALYSIS DOES NOT APPLY TO LEGISLATIVE 

PRAYER CLAIMS

The Supreme Court in Marsh and Town of Greece set forth a distinct test for lower courts 

to utilize when determining the constitutionality of legislative prayer. The test is not based upon an 

Equal Protection analysis. The “state of disarray” as to any other type of Establishment Clause 

jurisprudence is not relevant here. Town of Greece, 572 U.S. at 575 (“Marsh is sometimes 

described as carving out an exception to the Court’s Establishment Clause jurisprudence, because 

it sustained legislative prayer without subjecting the practice to any of the formal tests that have 

traditionally structured this inquiry”) (internal citations and quotations omitted). Justice Thomas 

recently noted in his dissent from the Supreme Court’s denial of certiorari in Rowan County, N.C. 

v. Lund, that “happily” the legislative prayer cases tended to “focus on whether the government 

practice is supported by this country’s history and tradition.” 138 S. Ct. 2564, 2564-65 (2018) 

(memorandum opinion). The dissenting Justices clearly disapproved of the Fourth Circuit’s 

decision to use some “combination of factors” to find a board’s prayer practice unconstitutional 

because the court had been “unfaithful to our precedents” in doing so. Id. at 2566. Consequently, 

one can infer the Supreme Court (or at least these Justices) would conversely approve of the Fourth 

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Circuit decision in Simpson, which rejected an Establishment Clause claim made by a Wiccan

resident who was denied opportunity to give invocation at a county meeting, finding in part, that 

invocations are government speech “subject only to the proscriptions of the Establishment Clause”. 

484 F.3d at 288 (citing Rosenberger v. Rector, 515 U.S. 819, 833 (1995)). 

The Supreme Court does not appear inclined to use any other analysis when considering 

legislative prayer. Consider the potential result of applying both clausesto the same prayer practice: 

A finding that the City’s legislative prayer practice does not violate the Establishment Clause but 

does violate the Equal Protection clause would create an untenable inconsistency by thwarting the 

standard developed by the Supreme Court for analyzing the constitutionality of legislative prayer. 

A. Level of Scrutiny – Plaintiffs are not members of a suspect class

“The government must treat all similarly situated persons alike.” Green v. City of Tucson, 

340 F.3d 891, 896 (9th Cir. 2003). If this Court is inclined to accommodate Plaintiffs and perform 

an Equal Protection analysis, the Court must first factually determine the basis upon which

Plaintiffs were excluded from giving an invocation to determine the level of scrutiny to apply. 

Honolulu Weekly, Inc. v. Harris, 298 F.3d 1037, 1047 (9th Cir. 2002). Courts apply strict scrutiny 

when distinctions are made on the basis of a suspect class, like religion. Id. Strict scrutiny requires 

the challenged law to be “narrowly drawn to serve a compelling state interest.” Id. If the law was 

not applied on the basis of a suspect class, then the law only need be “rationally related to a 

legitimate governmental purpose.” Id.

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, of which no one at 

the City knew or inquired into, the City’s prayer practice as applied to Plaintiffs is only subject to 

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the rational basis test. The City has a rational basis in limiting its speakers to those with a connection 

to the community. The prayers are directed at the Councilmembers, the purpose is to wish them 

guidance and wisdom in their governing of the community. See Town of Greece, 572 U.S. at 570.

It seems rational then, that the speakers could constitutionally be limited to those who truly have a 

connection with the City and have a vested interest in the decisions made by the local government. 

B. The City’s practice does not discriminate against Plaintiffs based on their 

religious beliefs

Plaintiffs rely again upon the statements of the Mayor and Councilmembers, outside the 

context of the legislative meeting to support claims of discrimination. As discussed at length above, 

there are no facts to support that these officials created the informal prayer practice that Plaintiffs 

allege is discriminatory or were responsible for applying it to them. Not every offending statement 

causes a constitutional violation. See Simpson, 484 F.3d at 290, n. 4. Even if the Court considers 

the officials’ statements, comprised of one article published in a newspaper’s opinion section, reelection campaign materials, and two emails sent by councilmembers in response to citizens, in 

none of the statements do the speakers purport to know anything about the “Satanists” beliefs. The 

name surely does not correspond with their beliefs, because, according to the TST website, they 

do not worship any higher power, or believe in Satan.7F

8 As such, it is unclear how Plaintiffs can 

show that City’s officials have discriminated against them based upon their religious beliefs.

/ / /

/ / /

 

8 https://thesatanictemple.com/pages/faq. 

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VI. CONCLUSION

For the foregoing reasons, the City is entitled to summary judgment on Plaintiffs’ claim that 

the City’s legislative prayer practice violates the Establishment or Equal Protection Clauses.

DATED this 26th day of April, 2019.

SCOTTSDALE CITY ATTORNEY’S OFFICE

By: /s/ Stephanie Heizer

Stephanie Heizer, Assistant City Attorney

3939 North Drinkwater Boulevard

Scottsdale, Arizona 85251

Attorneys for City Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on this 26th day of April, 2019, I electronically transmitted the attached 

document to the Clerk’s office using CM/ECF System for filing, and transmittal of a Notice of 

Electronic Filing to the following CM/ECF registrants:

Stuart P. de Haan

de Haan Law Firm, PLLC

100 N Stone Ave., Suite 512

Tucson AZ, 85701

Attorneys for Plaintiffs

Matthew A. Kezhaya

Kezhaya Law PLC

1202 NE McClain Rd.

Bentonville, AR 72712

Attorneys for Plaintiffs

By: /s/ Vickie Frost

An Employee of the Scottsdale City Attorney’s Office

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