Judge rules Boston City Council doesn't have to let Satanists give an invocation if it doesn't want to

A federal judge today dismissed a lawsuit by the Satanic Temple of Salem against the Boston City Council over the way counncilors invites clergy members to start meetings with an invocation, concluding that councilors were recognizing the good work done in the city by the clergy, not because they're pushing a particular religious viewpoint.

In their filings, the Satanists said they did, too, do good things in Boston, pointing to such efforts as their "Mentruatin' with Satan" program to collect tampons and distribute them to women in need, but US District Court Judge Angel Kelley pointed to statements by city councilors, in particular former at-large Councilor Annissa Essaibi George, that they were just unaware of the Satanists in general, at least up until the point the group began pushing for invites and then, in 2021, sued.

Kelley acknowledged that most of the clergy members invited to start weekly council meetings are Christian and sometimes mention Jesus or call for the Lord's blessings on councilors, but said the council has invited rabbis, an imam and even laypeople to say something inspirational before the council recites the Pledge of Allegiance and then gets down to business. Under a policy that dates back to the 1800s, when Boston had a board of aldermen, councilors take turns picking local clergy members to start their Wednesday meetings.

In contrast to communities in other parts of the country where similar practices have been questioned, at no point are the clergy members, from what Kelley said she could tell, trying to proselytize or demean other religious groups or attempting to get people to bow their heads in whatever form of worship the clergy prefer.

In 2017, apparently in response to one of TST's requests for an invocation, former Councilor Essaibi-George, like former Councilor Wu, stated that invocation speakers are "invited because of all of the incredible work that they do across the City, work to end youth violence, work to provide shelter and stability to the homeless, or compassion and support for people in recovery."

This evidence shows that the City Council's refusal to extend an invitation to TST was not motivated by an "aversion or bias" toward TST's beliefs. Town of Greece, 572 U.S. at 585. The introductions of the invocation speakers in the videos in the record similarly focus on the work the speakers had done in the community. Moreover, TST's own papers suggest that City Council invited invocation speakers based on their status as "political insiders," not their religious beliefs. It is possible that City Councilors select invocation speakers based on political affiliations and connections, as TST states. But those political considerations do not equate to discrimination based on religious beliefs. TST provides no evidence that the decision not to extend an invitation to TST was motivated by animus or bias. The City provides evidence that it was, in fact, motivated by other, lawful reasons. This evidence ranges from the City Councilors' contemporaneous responses to TST's requests for an invitation to evidence revealed years later through fact discovery, such as depositions. The evidence, viewed as a whole, does not suggest that these reasons were pretextual. There is no evidence that other groups asked to give an invocation and an invitation was then extended to them. While TST provides some evidence that it had been involved in the greater Boston community, which is the primary factor City Councilors consider when selecting invocation speakers, through "Menstruatin' with Satan," "Warmer than Hell [coat drive]," and Boston Pride tabling, there is no evidence that the City Councilors knew of those activities, nor that those activities took place within the Councilors' districts. Indeed, the evidence clearly conflicts with that conclusion—former Councilor Essaibi-George explained that she was unaware of TST's activities and community contributions when they sought inclusion in the invocation calendar and, indeed, the most she had read about TST was in the pamphlet given to her on the day of her deposition for this litigation.

Kelley also rejected a Satanist argument that e-mail some Boston residents sent councilors demanding the Satanists be kept away from the council chambers means the councilors themselves were biased:

The emails sent from the public to the City Councilors fall short of supporting TST's discrimination claim. Emails from the public expressing disagreement with TST's beliefs— particularly where, as here, there is no evidence that any City Councilor responded to those emails—do not support an inference that City Councilors did not invite TST to give an invocation because they shared the same opinion as the senders. City Councilors are public officials who interact with constituents regularly and whose email addresses are publicly available. ... If they could be held liable for every belief a constituent expressed, there would be no end to their liability. That is a step too far that the Court is not willing to take.

And she dismissed the temple's claim that the council's actions were particularly aimed at interfering with its religious rights under the Massachusetts equivalent of the First Amendment:

TST argues that City Council's legislative prayer practice is unlawfully burdensome because "it amounts to a forced choice" that requires TST to "continue to venerate Satan and thereby forfeit [its] opportunity to access a prayer opportunity," or it can "abandon the defining aspect of [its] creed in the hopes that this will make [it] sufficiently palatable to the political ruling class." This manufactured burden cannot sustain TST's free exercise challenge. A "‘substantial burden' is one that is coercive or compulsory in nature." Curtis, 652 N.E.2d at 587 (citations omitted). The City Council's legislative prayer practice is neither. The City has neither "condition[ed] receipt of an important benefit on conduct proscribed by a religious faith," nor has it "denie[d] such a benefit because of conduct mandated by a religious belief," and there is no indication that the City Council's legislative prayer practice has made it "more difficult to practice certain religions." Id. at 588. Because TST's "right to maintain [its] religion has not been hampered" by the City Council's legislative prayer practice, judgment must be awarded in favor of the City. Fedele v. Sch. Comm. of Westwood, 587 N.E.2d 757, 761 (Mass. 1992).

But while dismissing the Satanic lawsuit, Kelley did raise a red flag for councilors:

The City Council's process—or lack thereof—for selecting invocation speakers is the most troublesome to the Court of all factors to consider regarding legislative prayer practices. There is no dispute that the selection of the invocation speaker is left to each individual City Councilor’s discretion, and there are no formal written policies governing this procedure. This leaves ample room for abuse, which concerns the Court. However, the lack of a formal, written policy does not by itself create a constitutional problem (though the existence of one could provide neutrality-enforcing guidelines that would help avoid constitutional issues in the future), nor does the fact that the selection of speakers is left to the discretion of the individual Councilors.

A similar lackadaisical approach to determining which flags could fly on City Hall Plaza flagpoles ultimately led to a Supreme Court decision that let a former West Roxbury man fly his "Christian" flag outside City Hall for a couple of hours - and a $2.1-million payment to his lawyers.

Kelley's ruling did not reference the various stunts the Satanists tried to pull to push their claims, including trying to force Michelle Wu - but not Essaibi George - to spend several hours in Salem on Election Day, threatening to have Wu arrested and accusing city officials and Kelley of being part of a sinister conspiracy - an accusation the group's lawyer later said was simply a joke that a humor-impaired city attorney failed to grasp.

A federal magistrate judge ordered the Satanic Temple to reimburse Boston $8,000 for the time city attorneys spent fending off the group's repeated efforts to force Wu to drive up to Salem for a deposition - which would start with a candle-lit Satanic invocation.