Boston City Council did not violate the First Amendment by not letting out-of-town Satanists give invocations at meetings, court rules

A federal appeals court has tossed a lawsuit by Salem-based Satanists over the way the Boston City Council has local clergy members start its weekly meetings with an invocation - and over the way the city fought the group's efforts to make then Councilor Michelle Wu show up for a deposition way up on the North Shore on the day of the election in which she was running for mayor.

But in ruling in the council's favor, the US Court of Appeals for the First Circuit in Boston cautioned councilors they're kind of skating on the edge of what's permissible with an unwritten policy to let councilors take turns inviting local clergy members to start their Wednesday meetings. While the Satanic Temple failed to show religious bias in the specific examples of invocations it raised, that doesn't mean some other group might be able to do better research - or that the council could fall into a pattern of favoring one religion over another, the court ruled, both in its main opinion and in a concurring opinion by one of the three judges.

The Satanists, who don't actually worship Satan, sued the city council in US District Court in Boston in 2021 after failing to find a councilor willing to invite them to give an invocation to start one of the council's Wednesday meetings.

A couple months into their suit, they issued a deposition demand that Councilor Michelle Wu, then running for mayor, show up at their Salem headquarters for several hours of grilling on the day of the November election in which she was running for mayor. They did not make a similar demand of Councilor Annissa Essaibi George, who was running against Wu.

The judge in the case granted a request by the city to quash the deposition, and then, in 2023, dismissed the suit, prompting the group to make the appeal that was decided today.

The court concluded the Satanic Temple simply failed to provide any proof that the Boston invocations, which have a history going back to the 19th century, are an attempt by councilors to favor one religion over another or to let favored clergy members use a public forum for proselytizing.

Contrary to TST's claim, Boston's legislative prayer practice does not violate the Establishment Clause either on its face or as applied.

A key issue for the appeals court was whether the councilors used religious criteria in deciding whom to invite to speak.

The Satanists, the court concluded, failed to make the case. Instead, city attorneys showed councilors looked for clergy members who did good deeds in the city and, in the case of some councilors, in their specific districts.

Insofar as TST argues that Councilors choose invocation speakers on the basis of religious affiliation, the record does not support this characterization. In their testimony and in statements made to TST and to the public, City Councilors and their representatives have repeatedly stated that the Councilors choose invocation speakers in recognition of the speakers having benefited the communities which the individual Councilors represent.

Some "Menstruatin' with Satan" drives to collect tampons and sanitary napkins for the Boston-based Rosie's Place was hardly enough to connect the Salem-based Satanic Temple with Boston councilors, the court said, adding there is no constitutional requirement that councilors in one city select invocation givers in another.

The record shows that there are many neutral, non-discriminatory reasons why TST has not been invited to give an invocation, including the following. TST does not claim to have had a personal or working relationship with any Councilor on the basis of work it has done to benefit Boston communities. When TST asked Essaibi-George how it could "go about creating this relationship" with her, she testified, "I would have [to have] knowledge of your work and I would have run across it in my work as an at-large city councilor." For what it calls its "Boston Chapter," TST's physical temple is in Salem, Massachusetts, not the City of Boston, and at the time of its operative complaint, only 2,449 of its more than 270,000 national members lived in the "Boston metropolitan area." Boston is not required to "search beyond its borders" for invocation speakers, especially when its selection criteria focus on speakers' connections and service to the Boston community. See Town of Greece, 572 U.S. at 585-86. TST also has not demonstrated the existence of other organizations outside of Boston with minimal contributions to the Councilors' constituents who were routinely invited, much less that TST was not invited due to its beliefs. Although TST has provided some evidence that it has provided menstrual products to Rosie's Place in Boston, TST has not provided any evidence that this contribution took place in any specific Councilors' district, was known to the Councilors, or was as significant as the contributions of those invited to speak. Further, not every religious organization performing charitable work in any portion of the Boston community would receive an invitation to speak. As then-Councilor Wu informed TST in her email response to its initial request to give an invocation, many Councilors "have a long list of folks [they]'d like to invite but haven't been able to accommodate." Councilor Essaibi-George likewise testified that "not every organization gets invited" and that it was "[p]ossibl[e], but not likely," that TST would have received an invocation if it "had more members who were engaged in the community," again citing her limited number of invitations and limited knowledge of TST.

The court continued:

TST has not shown that any of the Boston City Councilors have chosen invocation speakers based on the Councilors' own religious preferences or biases or barred potential speakers from delivering invocations that oppose the Councilors' religious beliefs. The record shows rather that speakers were invited based on their contributions to the Councilors' districts and to the Boston community. For example, Councilor Kim Janey's speaker invitation to Reverend Mary Margaret Earl of the Unitarian Universalist Urban Ministry acknowledged that the congregation was "deeply active in the Roxbury community." Councilor O'Malley invited [Anne
Marie } Rousseau to speak every year from 2012 through 2020; Rousseau was "very involved" in her community of Jamaica Plain, the Boston neighborhood O'Malley represented, by serving as "an on-call minister at Hope Central Church in Jamaica Plain" as well as co-chair of the Ward 11 Democratic Committee and as a founder of "JP [Jamaica Plain] progressives," "a local community-based organization" concerned with "electing progressive candidates." Councilor Pressley, in her introduction of Adamson at the September 28, 2016, City Council meeting, emphasized that Adamson was a lifelong Boston resident of the Roslindale and Dorchester neighborhoods and a leader at several non-profit organizations, including the United Way of Massachusetts Bay and the Boston Debate League.

The court also rejected the group's argument that councilors control what clergy members will say by reviewing the text of invocations beforehand - because the fact that one rabbi one time sent a copy of her proposed remarks to an aide to Essaibi George 40 minutes ahead of time is proof of nothing in particular. And it said the judge in the case did nothing wrong in preventing Wu from being forced to journey to Salem, either on Election Day or sometime else, when the city offered up other people at City Hall who could make the trek - and, in fact, the one elected official who did wind up in Salem, where she first had to listen to a Satanic invocation, was Wu's mayoral opponent, Essaibi George.

The court, however, concluded its ruling with a caution for Boston:

It is clear that Boston's customary invocation speaker practice is admittedly meant to serve the interests of incumbent City Councilors. Those interests could in the future lead to Councilors favoring invitations only to those representing religious electoral majorities and explicitly proselytizing for those views or disparaging minority or unpopular groups.

The record before us shows Boston has taken no such action. Should it do so in the future, courts may again be called on to enforce constitutional commands under the Establishment Clause.

Chief Judge David Barron put the warning in starker terms in his concurring opinion, in particular blasting one statement by city attorneys that:

"[A] Councilor might find it politically expedient to curry favor with a religious group and its constituent members by inviting it to say a prayer," the City explains. It then reasons that such "currying" would be fine because "[i]t was the votes, and not the religion, that was the driving force behind the decision-making here."

To which Barron replied:

I suppose the City is right that using invocations to attract political support from certain religious communities does not constitute invidious religious discrimination. But I am dubious that the Establishment Clause blesses the practice that the City describes.

He noted that in both of the most recent Supreme Court rulings on invocations, the nation's top court paid close attention to the criteria used to select people to give invocations:

And, in neither case did the Court hold that the Establishment Clause permits a government to rely on any selection criterion so long that the government does not invidiously discriminate against some religious beliefs. Nor did the Court in either case hold that the Establishment Clause permits elected officials to base their selections on a crass political assessment of the votes that those selections would likely reap from adherents to certain religious beliefs.

A political calculus is quite different from selecting invocation givers because of their "good works" in the community, he wrote.

It may be neutral as to religion on its face. But it is easily considered to involve the Councilor selecting speakers based on the political benefit to be gained from pleasing a specific religious community. It therefore necessarily tends to favor those religious views that have the most adherents or that are least likely to be controversial in the eyes of the majority. ...

That the City of Boston argues otherwise concerns me. True, as the majority correctly explains, TST fails to develop an argument that the District Court erred in holding that no evidence supports the contention that the City was in fact relying -- or intending to rely -- on this vote-getting criterion. But it is also true that the City repeatedly concedes that it has no written criteria at all for how invocation speakers would be chosen. Thus, the City's representations to our Court that such a criterion is constitutionally permissible raises the concern that the City and individual Councilors are under the impression that future selections may rest on such a political basis without raising any Establishment Clause concerns. Nothing in our opinion, as I read it, suggests that impression is warranted. Much in our constitutional tradition suggests that it is not.