The Devil is in the Detail: Diverging Religious Groups Bring New Challenges to Religious Liberty

By Hannah Eaton. 

ExaminingSatanic Temple v. City of Scottsdale

On February 8, 2016, Jeremy Zarzycki called Kelli Kuester, an assistant to the Scottsdale mayor, to ask that the Arizona chapter of the Satanic Temple organization be added to the Scottsdale City Council’s invocation schedule. Normally, the City Council for Scottsdale opens its public session with an invocation. Michelle Shortt, the head of the Arizona chapter for the Satanic Temple, would be giving the invocation. Ms. Kuester added the Satanic Temple to the invocation schedule for April 5, 2016. Ordinarily, Ms. Kuester handled the schedule for invocation, but Brian Biesemeyer, the acting City Manager who made the ultimate decision about the invocation’s proceeding, stepped in. The scheduled date for invocation was pushed back to July 6, 2016. Mr. Biesemeyer contacted the City Attorney for advice. He was informed that while there was no formal written policy, traditionally organizations must have substantial ties to Scottsdale to give an invocation.

“The Satanic Bible & The Satanic Rituals: Companion to The Satanic Bible” by Noise Grunt is licensed under CC BY-NC-ND 2.0

On May 23, 2016, the Satanic Temple received an email from the City of Scottsdale.

The email stated:

The City Manager has asked me to inform you that he has decided that the City is not going to deviate from its long standing practice of having the invocation given only by representatives from institutions that have a substantial connection to the Scottsdale community. Therefore, we are making other arrangements for the invocation to be given on July 6th.

The Satanic Temple chapter is primarily based out of Tucson. Subsequently, almost two years later on February 26, 2018, Michelle Shortt and the Satanic Temple filed a religious discrimination claim in the United States District Court of Arizona. They alleged a violation of the Establishment Clause and Equal Protection Clause against the City of Scottsdale. A bench trial commenced on January 22 and 23, 2020. On February 5, 2020, the District Court denied the claim, stating that the Satanic Temple did not meet their burden of proving by a preponderance of the evidence that the City of Scottsdale denied the invocation request because of their religious beliefs. The burden of proving a claim by a preponderance of the evidence requires the party to prove a fact is more likely than not. The Satanic Temple filed a motion attempting to add further arguments, but this was denied on April 9, 2020.

Reconciling Legislative Prayer with the Establishment Clause

The concept of having a prayer before a government meeting seems contrary to the principle behind the Establishment Clause, which prohibits the government from establishing an official religion or favoring one over the other. However, prayer before congressional or other government meetings is a long-held tradition. In 1983, the Supreme Court held in Marsh v. Chambers that having a prayer before the Nebraska Legislature given by a state-funded chaplain was not in violation of the Establishment Clause. The court stated that “[i]n light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society.”

Determining If the Satanic Temple Is a Religion

If there is going to be a legislative prayer, the question arises of which religious organizations can speak. During the trial, there were conflicting testimonies about whether Satanism is a religion. The City of Scottsdale attorney discussed that Satanism did not have a religion’s traditional characteristics and instead mocked sincere religious beliefs. In contrast, Ms. Shortt stated that “[w]e as Satanists may not believe the same thing as you, but through our actions, show that we can be productive members of society and participate in invocations as anybody else would.”

The City of Scottsdale argued that the Satanic Temple lacked standing, because the Satanic Temple is not a religion and Shortt would be giving a nonreligious speech during a time reserved for religious prayer. The Ninth Circuit case gives a four factor test in Alvarado v. City of San Jose to determine whether a belief system is a religion under the Establishment Clause. The Court concluded that Ms. Shortt’s beliefs met all four factors for the Establishment Clause, stating that her “beliefs and practices are religious for the purposes of her religious discrimination claims.”

The Satanic Temple, which differentiates itself from the more widely known Church of Satan, has increasingly been recognized by courts as a religion, typically in prisoners’ rights cases. On April 25, 2019, the United States recognized the Satanic Temple as an organized religion that receives tax exempt status from the IRS. Despite only being founded in 2013, the Satanic Temple has twenty-five chapters globally. Nevertheless, culturally, it is not accepted as a “real” religion. As evidenced during the trial, Scottsdale Mayor Lane campaigned on the principle that he would be “standing up to Satanists.” Councilwoman Kathy Littlefield said that allowing the Satanic Temple to speak would be “taking equality too far,” while Councilwomen Klapp stated she would leave the meeting. The City of Scottsdale received over 15,000 emails from one church in opposition. However, the Satanic Temple had not produced enough evidence to show that Mr. Biesemeyer was aware of or had based his decision on any of this outrage. While there was not enough evidence in court, there seemed to be an overarching message in Scottsdale that the Satanic Temple would not be welcome.

Moving Forward Requires Changing Tradition or Increased Tolerance

Generally, when the Satanic Temple asks to give an invocation, government organizations may find themselves in a catch-22. They have two choices. First, they could not allow any prayer at all. This occurred in 2016 when the Phoenix council decided to change from verbal invocations to a moment of silence rather than allowing the Satanic Temple to give an invocation. Or second, they could allow the Satanic Temple to proceed with their invocation in order to prevent facing a potential lawsuit. But this choice also means protests from the community, similar to what occurred in Alaska when the Alaska Supreme Court ruled that a Satanic Temple member was allowed to read her invocation.

Ultimately, this scenario shows the precarious balance between freedom of religion and the Establishment Clause. This becomes more challenging when the country was founded upon Christian principles, which continue to dominate the United States culture today. According to Pew Forum, 67% of adults in Arizona identify as Christian, showing that it is the majority religious preference. In contrast, the Satanic Temple is a growing religious organization, because of, as described by one member, the rise of the theocratic right. The Satanic Temple invocations often contain the words “Hail Satan!” at the end, a direct contradiction to Christian beliefs. In order to truly preach religious liberty, America will have to accept removing legislative prayer or learn how to work alongside people of all religious beliefs. Otherwise, the government presents itself as establishing an environment in which the only welcome beliefs are those that conform with or do not oppose Judeo-Christian principles. If America truly wants to follow the principle of religious liberty espoused in the U.S. Constitution, we must grapple with how to work alongside and show tolerance for those with opposing religious beliefs.

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By Hannah Eaton.

J.D. Candidate, 2022

Hannah Eaton is a 2L Staff Writer completing her Juris Doctor and Masters of Social Work. She received degrees in Social Work and Criminal Justice from Indiana University. She currently works as a Social Work Intern at Adobe Mountain School with the Arizona Department of Juvenile Corrections. She’s an avid hiker and big fan of Dutch Bros.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.