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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

Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

Michelle Shortt and The Satanic Temple

 Plaintiffs,

vs.

City of Scottsdale, Arizona, by its City 

Council, consisting of the Mayor and council 

members, WJ Jim Lane, Suzanne Klapp, 

Virginia Korte, Kathy Littlefield, Guy Phillips, 

David Smith

Defendants,

 Case No. 18-cv-00621-DGC___

RESPONSE TO DEFENDANT’S MOTION

TO DISMISS

COMES NOW Plaintiffs The Satanic Temple and Michelle Shortt by and through counsel of 

record with a response to Defendants’ Motion to Dismiss. (Doc. 8). This response is supported 

by memorandum and points of authority.

MEMORANDUM IN SUPPORT OF RESPONSE

Standard of Review

Upon timely appeal, dismissals of a complaint reviewed de novo include Dismissal for 

failure to state claim. See Puri v. Khalsa, 844 F.3d 1152, 1157 (9th Cir. 2017).

“We review de novo a district court's dismissal for failure to state a claim upon which 

relief can be granted. See Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 

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2010). We accept as true all well-pleaded allegations of material fact and construe them 

in the light most favorable to the plaintiffs. See id. We also review de novo a district 

court's legal determinations, including constitutional rulings, and its determinations on 

mixed questions of law and fact that implicate constitutional rights. See Berger v. City of 

Seattle, 569 F.3d 1029, 1035 (9th Cir. 2009) (en banc).”

Defendants did not comply with LRCiv 12.1

This Court should deny Defendants’ motion for failure to comply with LRCiv 12.1. By local 

rule, this Court requires counsel to confer prior to filing a motion to dismiss for failure to state a 

claim. See LRCiv 12.1 (emphasis added):

No motion to dismiss for failure to state a claim or counterclaim, pursuant to Federal 

Rule of Civil Procedure 12(b)(6), or motion for judgment on the pleadings on a claim or 

counterclaim, pursuant to Federal Rule of Civil Procedure 12(c), will be considered or 

decided unless the moving party includes a certification that, before filing the motion, the 

movant notified the opposing party of the issues asserted in the motion and the parties 

were unable to agree that the pleading was curable in any part by a permissible 

amendment offered by the pleading party.

On June 12, 2018 at 3:10 pm, Plaintiffs received an email from Defendants which 

notifies Plaintiffs of the grounds for the motion prior to the filing of the motion by counsel of 

Defendants. 

The email indicates that Defendants do not believe that these pleadings were curable in 

any part by any permissible amendment. At 3:39pm, 29 minutes after the notification, 

Defendants submitted their motion for electronic filing. 

Defendants fail to comply with the rule because they made no attempt to solicit an 

amendment “offered by the pleading party.” LRCiv12.1. This motion should be denied 

summarily.

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I. Plaintiffs state valid claims against the individual defendants

Defendants first argue that Plaintiffs fail to state a valid claim against the individual 

defendants. Motion at p. 4. Plaintiffs specifically alleged that the individual defendants acted 

under color of law to violate their First Amendment rights. Complaint at ¶¶ 10-13, 23, Exhibit 1, 

31, 35, 37, and 41. These paragraphs are factual assertions that, if taken as true, state a viable 

and plausible claim for judicial relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Plaintiffs received an email from “City of Scottsdale administrative staff” which states that the 

City Manager,

asked me to inform you that he has decided that the city is not 

going to deviate from it’s long standing practice of having the 

invocation given only representatives from institutions that have a 

substantial connection to the Scottsdale community.

Complaint at Exhibit 7.

Other exhibits to the Complaint show a concerted effort on the part of Mayor Lane and 

the other City Council members to halt The Satanic Temple invocation of grounds of viewpoint 

discrimination. (Complaint at Exhibits 5, 8, and 9). This is the basis for Plaintiffs’ complaint.

Plaintiffs allege that the “policy” alleged in this email does not exist. It is an unwritten 

rule that was created as pretext by whichever government official or officials made the decision

to exclude Plaintiffs from the invocation ceremony. 

It is further evidence that the “policy” never existed where it is never mentioned in prior 

public and emailed statements of the mayor and various city council members. Instead, the prior 

narrative included several bold disparagements of Plaintiffs. (Complaint at Exhibits 5, 8). 

It is further evidence that the “policy” never existed that there had never been an inquiry 

into The Satanic Temple’s ties to the City. (Complaint at Exhibit 3). If the policy indeed 

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existed, Plaintiffs would have been permitted an opportunity to present evidence of ties to the 

City.

Plaintiffs also point to specific statements made by the individual defendants that 

evidence the constitutional violations alleged. (Complaint at ¶¶ 23, 31, 35, 37, and 41). These 

are not prohibited merely conclusory statements, but specific allegations of fact that evidence the 

unlawful discrimination that took place.

Defendants also argue that the claims against the individual defendants are “merely 

duplicitous” of the claims against the City. Motion at p. 4. This is untrue. The claims against 

the individual members are different from the claims against the City because the individual 

members acted “under color of state law.” Complaint at ¶ 13. Under 42 USC § 1983, liability 

attaches to each individual actor. The individuals and the City may have engaged in the same

wrong, but the relief is different.

II. Plaintiffs state an Establishment Clause claim

Defendants next challenge Plaintiffs’ Establishment Clause claim. Motion at p.5. 

Defendants’ argument is that prayers given by primarily one religion is in itself a legal practice. 

Id. pp. 5-7.

Defendants’ argument does not meet Plaintiffs’ claim. The issue raised is preferential 

treatment of one religion over another. The Establishment Clause only permits Legislative 

prayers if there is no policy of discrimination. E.g., Town of Greece v. Galloway, 134 S. Ct. 

1811, 1817 (2014). Plaintiffs specifically allege the kind of discrimination that the 

Establishment Clause prohibits.

Once legislative prayer is allowed, the Establishment Clause requires other religions to 

be given a meaningful opportunity to participate. See Greece, 134 S.Ct. at 1824 (“The town 

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made reasonable efforts to identify all of the congregations located within its borders and 

represented that it would welcome a prayer by any minister or layman who wished to give one.”); 

Marsh v. Chambers, 463 U.S. 783,794-95 (1983) (“The content of the prayer is not of concern to 

judges where . . . there is no indication that the prayer opportunity has been exploited to 

proselytize or advance any one, or to disparage any other, faith or belief.”)

Greece thus makes clear that legislative prayer is constitutionally permissible only if it 

is inclusive of all faiths. Plaintiffs’ complaint is that Defendants is excluding them on the basis 

of their faith. In excluding Plaintiffs, the Defendants have violated Plaintiffs’ Establishment 

Clause rights.

Defendants also erroneously rely on Rubin v. City of Lancaster 710 F.3d 1087 (9th Cir. 

2013). This case has the opposite material facts from Rubin, which means it requires the 

opposite conclusion. In Rubin, “No person who has volunteered to pray has been turned down, 

and no government official has ever attempted to influence the clerk's selection or scheduling of 

volunteers.” Rubin v. City of Lancaster 710 F.3d 1087 (9th Cir. 2013). This case is 

distinguishable from Rubin because Plaintiff Shortt was a volunteer to pray that was turned 

down, and government officials (successfully) attempted to influence the Clerk’s selection or 

scheduling of volunteers.

Inclusiveness and neutrality are the common elements in all cases upholding a 

legislative prayer in light of an Establishment Clause challenge. Defendants cannot, consistent 

with the Establishment Clause, embark on a policy of exclusiveness and favoritism by 

specifically prohibiting Plaintiffs from the invocation ceremony. 

All available evidence suggests the policy was created immediately prior to the email

informing Plaintiffs they are banned from participating in the legislative prayer. This violates 

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the Establishment Clause because it was “a message to nonadherents that they are outsiders, not 

full members of the political community, and an accompanying message to the adherents that 

they are insiders, favored members of the political community.” Lynch v. Donnelly, 465 U.S. 

668, 688 (1984) (O’Connor, J., concurring).

Defendants made public, repeated, and specific comments disparaging Plaintiffs’ 

religious beliefs and prohibited Plaintiffs, alone, from participating in the ceremony. These 

actions materially alter the Establishment Clause analysis and provides the basis of a valid claim.

III. Plaintiffs state a claim under the Equal Protection clause

Defendants also challenge Plaintiffs’ claims under the Equal Protection Clause. Motion 

at pp. 10-12. Defendants’ argument is that legislative prayer cases are tested only by the 

Establishment Clause. Motion at pp. 10-11. But Defendants’ argument lacks citation to any 

binding precedent, relying instead only on the Fourth Circuit, a Pennsylvania District Court case 

a Tennessee District Court case, and a Florida District Court case.

This Court lies in the Ninth Circuit, not the Fourth Circuit. Whether a government 

entity may violate an individual’s Equal Protection rights by legislative prayer appears to be an 

issue of first impression for the Ninth Circuit. Diligent research by Plaintiffs’ counsel has 

upturned no cases specifically on the issue of legislative prayer.

Part of what may explain the dearth of case law on this issue is an underutilization of 

the Equal Protection Clause in religious cases. See, generally, Gellman, Susan & LooperFriedman, Susan, “Thou Shalt Use the Equal Protection Clause for Religion Cases (Not Just the 

Establishment Clause),” Journal of Constitutional Law 10:4, 665.

At bottom, the policy furthered by the Establishment Clause is similar, but not identical,

to that provided by the Equal Protection Clause: a government cannot discriminate for, nor 

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against, a religion or religions. See Newdow v. United States Cong., 328 F.3d 466, 490 (9th Cir. 

2002) (Fernandez, J., concurring and dissenting). and id., 328 F.3d at 491 (“[T]hose clauses are, 

in effect, an early kind of equal protection provision and assure that government will neither 

discriminate for nor discriminate against a religion or religions;”) see also 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.”) (emphasis added).

But Equal Protection is a wholly different body of law from Establishment Clause, 

complete with its own unique analytical framework and tests. Equal Protection is the not the 

same thing as Establishment Clause. The Equal Protection Clause claims thus provides for an 

independent basis for relief unmired by Supreme Court jurisprudence on the Establishment 

Clause. While Marsh, for example, may find that a sectarian legislative prayer does not offend 

the Establishment Clause, it says nothing about the unequal treatment of classes of citizens under 

the Equal Protection Clause.

Under the Equal Protection Clause analysis, this case becomes a simple question of 

whether the government action intentionally discriminates against a suspect class. Plyler v. Doe, 

457 U.S. 202, 216-17 (1982). A suspect class is one historically “relegated to such a position of 

political powerlessness as to command extraordinary protection from the majoritarian political 

process.” Id., 457 U.S. at 217, fn. 14. Legislation imposing special disabilities upon groups 

disfavored by virtue of circumstances beyond their control suggests the kind of “class or caste” 

treatment that the Fourteenth Amendment was designed to abolish. Id. 

Plaintiffs fall squarely within that definition: they are a group disfavored by virtue of 

their faith, a circumstance no more within their control than a devout Christian’s faith is within 

her own. See also Ball v. Massanari, 254 F.3d 817, 823 (9th Cir. 2001). (If the statute employs a 

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suspect class (such as race, religion, or national origin) or burdens the exercise of a constitutional 

right, then courts must apply strict scrutiny, and ask whether the statute is narrowly tailored to 

serve a compelling governmental interest.)

Sometimes a constitutional claim may not give relief under the Establishment Clause 

which would have been granted under the Equal Protection Clause. This is because, broadly 

speaking, the Establishment Clause prohibits proselytization where the Equal Protection Clause 

prohibits Marginalization. Gellman, above, Journal of Constitutional Law 10:4 at 702.

Plaintiffs strenuously contend that their Establishment Clause claims are materially 

distinguishable from the cases that find the Establishment Clause does not prohibit sectarian 

religious references in a legislative prayer. But even if their Establishment Clause claims fail, 

the Equal Protection Clause provides an independent basis for relief.

Defendants also rely on a pretextual policy that permits Defendants to discriminate 

against Plaintiffs based on their views. As stated above, the policy was fabricated for the sole 

purpose to exclude Plaintiffs on the basis of their religious beliefs. No other religious 

organizations have been subject to the scrutiny of their location or “connection to the 

community.”

Dated this 3rd day of July, 2018

Attorney for the Plaintiffs:

/s/ Stuart de Haan

Stuart P. de Haan, The Satanic Temple

101 E Pennington

Suite 201

Tucson, Arizona 85701

Telephone: (520) 358-4089

Facsimile: (520) 628-4275

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CERTIFICATE OF SERVICE

I certify that on the 3

rd day of July, 2018 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

Stuart de Haan

Attorney for Plaintiff

Case 2:18-cv-00621-DGC Document 12 Filed 07/03/18 Page 9 of 9