Satanists allowed to continue to press claim that the way the City Council picks clergy for invocations is unconstitutional

A federal judge ruled today that Salem-based Satanists can continue to press their claim that the way the Boston City Council picks clergy members to start its Wednesday meetings - but not them - violates the Constitution's ban on the establishment of religion.

The Satanic Temple, frustrated in its efforts to give an invocation for a City Council meeting, sued the council in January, alleging the current system, in which councilors take turns inviting a clergy member to address the council, violates the First Amendment prohibition against government-sponsored religion and the group's First Amendment free-speech rights and violates their rights to equal treatment under the Fourteenth Amendment.

In her ruling today, US District Court Judge Allison Burroughs agreed with city lawyers that the policy does not infringe on the temple's free-speech or equal-protection rights and dismissed those claims. But she ruled that the group had made a "plausible" enough case about the establishment issue to warrant it going forward in court.

Burroughs said that no free-speech issues are involved because the council does not permit public comment at its Wednesday meetings, so they are not a "public forum" in the same way as council hearings, at which the public is invited to speak. Government, she said, has its own right to free speech and its Wednesday meetings are an expression of that.

Similarly, the Fourteenth Amendment challenge fails because of the emphasis councilors put on their selections of speakers based on their work in the community or their connection to the councilors who chose them.

The speaker at today's council meeting, Rabbi Barbara Penzer of Temple Hillel B'nai Torah in West Roxbury, who opened her invocation with the Shema, a Jewish statement that "The Lord our God, the Lord is one," spoke on the invitation of City Councilor Matt O'Malley. O'Malley, who represents West Roxbury, introduced her by praising her for her work and fondly recalling a St. Patrick's Day celebration at the temple.

Burroughs said there's nothing wrong with choosing speakers based on the associations with a particular councilor or neighborhood.

Educating the public about their representative's values and relationships and acknowledging the contributions of various constituents are legitimate government interests, to which the legislative prayer selection scheme is rationally related.

She noted that the Satanic Temple has no such connection with Boston or any of its councilors, that, in fact:

It is based outside of Boston, and although six religious organizations from outside of Boston were selected to give a legislative prayer, the only invocator from outside Boston that TST references in its Amended Complaint had a specific personal relationship with a Councilor after taking care of that Councilor's mother. No prudent person would find that TST, which emphasizes that it does not have relationships with any of the City Councilors, was similarly situated to the sole example provided.

Ed. note: In such rulings, judges are required to accept the plaintiff's "facts" as true. But, in fact, while that minister, Rev. Lindsay Popperson, does minister at a church in Marblehead, she lives in Jamaica Plain, where she got to know O'Malley when his mother was at the Sherrill House skilled-nursing facility on South Huntington Avenue, where she also works.

But Burroughs did find enough of a legal basis in the Satanic Temple's remaining allegation, that the method by which councilors pick invocation speakers are showing preference to "Abrahamic" religions, to warrant the case continuing.

She pointed to a 2014 Supreme Court case involving the Rochester suburb of Greece, which also opened its board meetings with an invocation. But unlike in Boston, where speakers are selected by councilors, in Greece, clergy members could sign up to given an invocation; speakers were then picked from that list. As long as the board wasn't deliberately avoiding clergy from particular religions, that is "a policy of nondiscrimination," the court concluded.

Here, by contrast, Defendant's policy does not allow for minority religions to put their names forward to be selected for a legislative prayer opportunity and instead relies on individual legislator preferences.

The amended complaint does not allege that the content of any of these invocation speeches denigrated TST or disparaged its religion but it does aver that Defendant was urged by constituents not to invite TST to give a legislative invocation and was aware of a 2,000-person march which protested TST's attempt to stage a Black Mass at Harvard. Plaintiff's facts, taken as true, allege a discriminatory motive, and therefore, Defendant's policy falls outside of [the non-discrimination standard set by an earlier Supreme Court case]

City attorneys argued that the whole invocation process was similar to the way legislators in other states give their own invocations, in this case by delegating particular clergy members to speak on their behalf. But Burroughs noted that courts in different parts of the country have ruled differently on "legislator-led" prayers and that judges in the First Circuit - which includes Massachusetts - have not ruled on the question at all.

Given the fact-specific nature of the inquiry into the constitutionality of legislative prayer schemes and the lack of controlling authority from the First Circuit or Supreme Court, this Court will not dismiss TST's Establishment Clause claim at the motion to dismiss stage. In this unsettled arena, taking into account the specific facts alleged in this case, TST has plausibly raised a claim that Defendant's prayer selection policy has discriminated against it in violation of the Establishment Clause.