# The Satanic Temple, Inc. v. City of Boston

> District Court, D. Massachusetts · July 31, 2023

URL: https://www.frixlaw.com/law-library/cases/10201286

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** July 31, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10201286

## How later opinions describe it (automated extraction)

- explaining that “lawmaker-led prayer . . . both identifies the government with religion more strongly than ordinary invocations and heightens the constitutional risks posed by requests to participate and by sectarian prayers”

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
)
The Satanic Temple, Inc., )
)
Plaintiff, )
)
) Civil Action No. 21-CV-10102-AK
v. )
)
City of Boston, )
)
Defendant. )
)

MEMORANDUM AND ORDER
ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

A. KELLEY, D.J.
Plaintiff The Satanic Temple, Inc. (“TST”), brings this suit against Defendant City of
Boston (the “City”), alleging that the Boston City Council (the “City Council”) violated TST’s
First Amendment rights under the United States Constitution and its free exercise rights under
the Massachusetts Constitution when City Councilors did not extend an invitation to TST or
allow its request to give the invocation before the start of one of its weekly meetings. Both
parties have filed motions for summary judgment. [See Dkt. 98; Dkt. 101]. For the following
reasons, the City’s motion for summary judgment [Dkt. 98] is GRANTED, and TST’s motion
for summary judgment [Dkt. 101] is DENIED.
I. BACKGROUND
In evaluating the cross-motions for summary judgment, the Court relies on the parties’
statements of material facts, responses thereto, and any attached exhibits the parties have
submitted. [See Dkt. 100; Dkt. 104; Dkt. 110; Dkt. 112]. The Court accepts as true each
material fact to the extent it has not been disputed by the opposing party and considers contested
each material fact that either party has disputed. Unless otherwise noted, the facts below are
undisputed.
A. Invocations at City Council Meetings
City Council holds meetings every week, usually on Wednesday, except on holidays or

when otherwise ordered. [Dkt. 112 at ¶¶ 2-3]. There are approximately thirty-five meetings per
year. [Id. at ¶ 4]. Time is set aside at the beginning of each meeting for an invited member of
the public, often clergy, to say a few words. [Id. at ¶ 5]. These invocations have been given at
City Council meetings, or prior iterations of the City’s local government, since the 1800s.1 [Id.
at ¶ 1]. At the beginning of the calendar year, City Council staff prepares a schedule of dates for
City Council meetings, including the name of the City Councilor responsible for securing an
invocation speaker for each meeting. [Id. at ¶ 8]. While the staff attempts to assign the same
number of dates to each City Councilor, it is not always possible. [Id. at ¶ 7].
The selection of the invocation speaker is left to the discretion of individual City
Councilors and their staffs. [Id. at ¶ 11]. An individual must receive an invitation from a City

Councilor to offer an invocation prior to Council meetings, and the City Council does not take
requests to give an invocation. [Id. at ¶ 13]. There are no guidelines or rules governing whom a
City Councilor may invite to give an invocation, and no formal, written policy exists. [Id. at
¶ 12]. The City states that invocation invitations are “based upon personal relationships the
Councilors have and the work that the individual invitee does in the district or for their
constituents.” [Id. at ¶ 18]. In 2016, in response to TST’s first request for an invitation to give
the invocation, Michelle Wu (“Wu”), a former City Councilor who is now the Mayor of Boston,
described the practice, in writing:

1 The City had an alderman form of local government, not a city council, prior to 1909. [Dkt. 112 at ¶ 1].
[E]ach Councilor has the chance to invite 2-3 faith leaders per year to deliver the opening
invocation at one of our Council meetings. The invitations are often used to recognize
faith leaders who are active in the community and organizations that are representative of
their districts. There is no restriction or criteria based on any Councilors’ religious
preferences. Many of us have a long list of folks we’d like to invite but haven’t been able
to accommodate.

[Dkt. 100-11 at 2]. Another City employee separately explained that Councilors “have invited
members from their district . . . who are active in their neighborhood and engaged community
members in addition to being members of the clergy.” [Dkt. 104-1 at 23].
Other City Council members and their staff describe the invocation invitations in similar
terms. Christine O’Donnell (“O’Donnell”), who is the Compliance Director and counsel for the
City Council, explained in a deposition that “the invitations for the invocation are based upon
personal relationships the [C]ouncilors have,” in other words, “people that they have
relationships with because of their districts. It might be work that the individual does in their
districts or does for their constituents. That has been the policy.” [Dkt. 100-1 at 52:22-24, 53:7-
12]. When asked whether there was a basis for limiting who may participate in the invocations,
O’Donnell responded, “It’s by invitation. So, the limit would be if you don’t get an invitation,
you don’t give the invocation.” [Id. at 152:20-153:1]. TST has characterized the selection
process as City Councilors “extend[ing] invites only to their friends and political allies.” [Dkt.
110 at ¶ 2].
One invocation speaker, Anne Marie Rousseau (“Rousseau”), gave an invocation
annually from 2012 to 2020 at the invitation of former Councilor Matt O’Malley (“O’Malley”).
[Dkt. 112 at ¶ 17]. In addition to volunteering for Councilor O’Malley’s campaign, Rosseau was
co-chair of the Ward 11 Democratic Committee, co-founded JP Progressives, a “local
community-based organization [] concerned about issues and electing progressive candidates,”
and worked at Metro Housing Boston. [Dkt. 100-7 at 7:17-22, 8:1-2]. She was also an on-call
minister at Hope Central Church in Jamaica Plain, which is affiliated with the United Church of
Christ and the Disciples of Christ, and she had been a chaplain at another organization. [Id. at
7:23-8:1, 9:9-13, 11:13-20]. Rosseau also “knew the councilor personally” and “had interacted
with him many times.” [Id. at 8:3-4]. When extending an invitation to a different community

leader to give the invocation at a meeting, former City Councilor Kim Janey acknowledged that
the “Unitarian Universalist Urban Ministry, under [the reverend’s] leadership, is deeply active in
the Roxbury community, providing and hosting [a] wide array of services and events. [The
reverend’s] work to restore the First Church of Roxbury, and continued efforts to reinvigorate
the building, are evidence of this commitment to social justice and service.” [Dkt. 100-8 at 3].
Former Councilor Janey explained to one invocation speaker that “[o]pening our
meetings with prayer provides the Council with a moment of meditation and reflection as we
address the important work before us as a body.” [Id.]. The content of the invocations is written
or determined by the invited speaker. [Dkt. 112 at ¶ 22]. The invocations may take the form of a
“blessing,” “opening remarks,” “a prayer,” “a sermon,” a “poem,” a “reflection,” or “something

like that.” [Dkt. 112 at ¶¶ 21, 29; see Dkt. 100-6 at 107:15-25]. The majority of invocations
have been given by individuals from a variety of Christian denominations, but there have “also
been a number of representatives from other types of religions,” including rabbis and an imam.
[Dkt. 112 at ¶¶ 24-26]. There have also been “some laypeople” or “non-religious speakers,”
including individuals from organizations doing work within the community, who have given
invocations. [Id. at ¶¶ 24, 27-28]. For example, the City Clerk has given several invocations,
usually reading from a “book of reflections,” and a leader of the Boston Debate League, who was
also in divinity school, gave an invocation. [Id. at ¶¶ 30-31].
TST provides video evidence of one invocation given at a City Council meeting. See
https://www.youtube.com/watch?v=qb5iu6B1TxA (“August 2021 Video”). In that video clip,
the City Council is called to order and roll call occurs. Id. at 3:00-3:45. The City Councilor who
invited the invocation speaker then introduces the speaker, who founded a church in Boston and

served on several boards of directors in Boston. Id. at 4:03-5:57. The speaker, who is a pastor,
then takes the microphone. In addition to welcoming remarks, she references the Bible and
states, “Let us pray,” before she gives a prayer. Id. at 6:24. She states that she “pray[s] for each
member of the Boston City Council” and asks for the Lord to give them “understanding,”
“wisdom,” and “knowledge” as they proceed with their duties. Id. at 7:17-9:49. The meeting
then proceeds with the Pledge of Allegiance and the first order of business. Id. at 9:56-10:43.
Contrary to TST’s characterization in its statement of facts, the video shows that the audience is
not instructed to stand for the invocation, nor are they directed to participate in the prayer. [See
Dkt. 110 at ¶¶ 1, 4].
There are two other videos of City Council meetings mentioned briefly in the parties’

papers. One is referenced by the City in its statement of facts, and it is of an imam who gave the
invocation in April 2023.2 See https://www.youtube.com/watch?v=Ti7QMgpUK8Q
&list=PLQaoo0hI2DAjk5JId3kvv1N3WJt8GgBFr&index=24 (“April 2023 Video”). The
meeting proceeds much as the other did—the City Clerk conducts roll call, the City Councilor
introduces the speaker, and the speaker gives the invocation. The imam opens by stating that he
always greets “the audience” by saying, in Arabic, “Peace be upon you.” Id. at 5:30-5:44. He
then proceeds to read from the Koran and gives a few remarks at the end. In those remarks, he
states that it is “incumbent upon you [the City Councilors], as our representatives, to get to know

2 The imam had previously been invited to give the invocation by Councilor Charles Yancey, who left City Council
in 2015. [Dkt. 112 at ¶ 26].
one another, not in the superficial way . . . because you represent me and us,” and “the more you
get to know each other outside of the walls of the City Hall, the more you all can come together
. . . [and] we’ll get the benefit of your relationship.” Id. 8:35-9:34. At no point in the video,
which begins prior to the roll call, are people instructed to stand. Still, after reading from the

Koran, the imam states, “You can sit down now,” which suggests that people were standing and
may have done so of their own volition. Id. at 6:58.
The other video is cited by TST in a footnote in its response to the City’s statement of
facts. [See Dkt. 112 at ¶ 31 n.1]. In that video, which is from a September 2016 City Council
meeting, the City Clerk does roll call, the City Councilor introduces the speaker, and the speaker
gives the invocation. See https://www.youtube.com/watch?v=T1rDy1ioPnE (“September 2016
Video”). At this meeting, the City Councilor instructs everyone to stand for the invocation and
the Pledge of Allegiance. Id. at 1:50-1:59. The speaker, who was involved in several nonprofits
and studying at divinity school, speaks about the mission of the Boston Debate League. She then
instructs everyone to bow their heads before offering a prayer that thanks the Lord for the City

Councilors’ service, asking the Lord to remind the Councilors that “nothing is too hard for
[them]” and if they “humble themselves” before the Lord, they will be lifted up. Id. at 5:57-9:57.
She asks for guidance to allow the City Council to be “the best politicians, the best governing
body that this nation has ever seen.” Id.
Invocation speakers previously received a stipend from the City. [Dkt. 112 at ¶ 9]. One
invocation speaker testified that she received a $75 stipend when she first gave an invocation in
2012, though she did not remember receiving one after that. [Id. at ¶ 10]. The stipend practice
stopped in 2016 or 2017 after City Council investigated the practice. [Id. at ¶ 9; see Dkt. 110 at
¶¶ 8-10]. TST claims that this practice ceased because of TST’s initial demand for inclusion and
in contemplation of this litigation.3 [Dkt. 112 at ¶ 9; see Dkt. 104 at ¶ 10].
B. TST’s Requests for Inclusion
On October 6, 2016, Travis LeSaffre (“LeSaffre”), Head of the Boston Chapter of TST,

sent an email to former Councilor Mark Ciommo (“Ciommo”), asking him to “appoint[]
[LeSaffre] as [Ciommo’s] invited clergy member to perform an invocation.” [Dkt. 100-10 at 2;
see Dkt. 112 at ¶ 32]. LeSaffre similarly reached out to former Councilor Tito Jackson and
former Councilor Wu. [Dkt. 112 at ¶ 33; see Dkt. 100-11]. In response, former Councilor Wu
explained that many Councilors had a “long list” of individuals they would like to invite but are
unable to accommodate, and the invitations are “often used to recognize faith leaders who are
active in the community and organizations that are representative of [the Councilors’] districts.”
[Dkt. 100-11 at 2].
LeSaffre sent another email to several City Councilors on August 17, 2017. [Dkt. 112 at
¶ 36; see Dkt. 100-12]. In that email, LeSaffre asked the City Council to “[a]llow all individuals

equal opportunity to perform invocations” or “[r]emove invocations from all future City Council
meetings.” [Dkt. 100-12 at 2]. Around this time, some City Councilors received emails from
individuals stating that they did not want TST to give an invocation. [Dkt. 104-1 at 42-45].

3 The deposition testimony TST cites to support this claim is that of O’Donnell. [See Dkt. 104-1 at 34-38].
O’Donnell acknowledged that the investigation into the stipend “coincides with TST’s first request.” [Id. at 35].
When asked, “Was it because of TST’s demand?” she responded, “It was looked at and considered best practice to
stop the stipend.” [Id.]. When counsel persisted, “But did the process of looking at the process of whether we are
giving money to these priests, was that occasioned by TST’s demand for invite?” O’Donnell responded, “Yes, the
policy was looked at then.” [Id.]. When TST continued to push O’Donnell on the topic, she explained, “I was not
involved in that decision whether or not to stop the payment.” [Id. at 36]. And when TST again asked, “Was the
purpose of reviewing the determination to pay these priests part of a purpose of avoiding liability thereby avoiding a
court order requiring TST to have an invitation? Is that why you guys did you, your [sic] review?” O’Donnell
responded, “The re—the review was done. And again, I did not conduct this review. But the review of the policy of
paying the people giving the invocation was looked at, and it was determined that it was best practice to stop the
stipend.” [Id. at 37-38].
There is no evidence that any City Councilors responded to those emails. [See id.]. One former
City Councilor, Annissa Essaibi-George (“Essaibi-George”), commented in response to TST’s
request4:
It is absurd that this group feels entitled to being invited to give remarks at the beginning
of the Council [m]eeting, and frankly its [sic] insulting to all of the amazing religious and
secular leaders who are invited. They 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. I will not
give up the opportunity to highlight one of these amazing leaders who I am privileged to
work with for the Satanic Temple. The City Council does important, serious work for the
people of Boston and when we invite someone to participate in our meeting it is out of a
profound respect, not a sense of obligation.

[Dkt. 100-13 at 2]. Former Councilor Tim McCarthy responded to NBC Boston’s inquiry on the
issue by stating, “I would not consider anyone that doesn’t have a positive impact on my
community, my constituents, my family and me personally. Every leader I have invited, they all
check the forementioned boxes. This issue is not about the honor bestowed to a faith leader by a
Boston City Councilor, this is a publicity stunt.” [Dkt. 104-1 at 10].
On October 2, 2018, a representative from TST again requested an opportunity for
someone from TST to give the invocation at an upcoming City Council meeting. [Dkt. 112 at
¶ 39]. The next day, O’Donnell informed TST via telephone that the City Council does not
accept requests from speakers to deliver invocations and City Councilors decide who will deliver
the invocation. [Id. at ¶ 40; see Dkt. 100-14 at 2]. O’Donnell also stated that the City Council
does not have a written policy concerning invocations. [Dkt. 112 at ¶ 40; see Dkt. 100-14 at 2].
On October 9, 2018, O’Donnell emailed the TST representative, explaining that each City
Councilor may invite “either clergy or a lay person” to give the invocation, and that the City
Councilors do not themselves offer the invocation. [Dkt. 112 at ¶¶ 41-42; Dkt. 100-14 at 2].

4 It is unclear to whom the message was circulated or whether this was a draft of a public statement to be made.
TST filed a complaint with the Massachusetts Commission Against Discrimination on October
17, 2018. [Dkt. 100-14]. City Councilors again received emails from members of the public
between March – April 2019 regarding TST’s request for inclusion as an invocation speaker, and
again it appears no City Councilor responded. [Dkt. 104-1 at 39-41].

TST provides an affidavit from its co-founder and co-director, Lucien Greaves, which
states that TST engaged in “charitable acts and community involvement activities within the
Boston community.” [Dkt. 104-1 at 13]. These activities included “Menstruatin’ with Satan,” a
drive to collect tampons and sanitary napkins for Rosie’s Place, a safe haven for LGBTQIA+
women, in November through December 2016, November 2019 to March 2020, and July 2021;
“Warmer than Hell,” a coat and winter clothing drive for Second Chances in January 2017; and
tabling at Boston Pride every year from 2016 to 2019. [Id. at 13-14]. TST does not provide
evidence that any of the City Councilors knew of or were also involved in these activities. There
is no evidence in the record of other groups requesting invocation invitations and receiving them.
In fact, at a deposition for this action, former Councilor Essaibi-George stated, “I don’t think

anyone’s ever asked me, with the exception, I think, why I’m here today, to offer remarks, a
prayer, or a blessing before the [C]ity [C]ouncil,” when asked whether other groups have
“solicited an invite.” [Dkt. 100-6 at 121:15-23].
C. Litigation
TST filed the suit before this Court on January 20, 2021. [See Dkt. 1]. While TST
asserted violations of the Establishment Clause of the U.S. Constitution (“Count I”), the Free
Speech and Free Exercise Clause of the U.S. Constitution (“Count II”), the Equal Protection
Clause of the U.S. Constitution (“Count III”), and the Free Exercise Clause of the Massachusetts
Constitution (“Count IV”), the Court dismissed Counts II and III. [See Dkt. 21]. TST then spent
the majority of fact discovery attempting to take the deposition of then-mayoral candidate, and
later Mayor, Wu, including issuing a notice of deposition for November 2, 2021—Election Day.
[See, e.g., Dkt. 40; see also Dkt. 90; Dkt. 96]. The Court ultimately granted the City’s motion
for a protective order to quash Wu’s deposition and awarded the City attorneys’ fees and costs

for TST’s counsel’s use of abusive discovery tactics when he continued to pursue Wu’s
deposition. [See Dkt. 47; Dkt. 63; Dkt. 78; Dkt. 96]. Each party has filed a motion for summary
judgment, which are opposed. [Dkt. 98; Dkt. 101; Dkt. 109; Dkt. 111]. The Court held a motion
hearing on the cross-motions for summary judgment on June 28, 2023.
II. LEGAL STANDARD
The purpose of summary judgment is to “pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d 816,
822 (1st Cir. 1991) (citation omitted). Summary judgment may be granted when the record,
viewed in the light most favorable to the non-moving party, presents no “genuine issue of
material fact,” and the moving party is entitled to judgment as a matter of law. Paul v. Murphy,

948 F.3d 42, 49 (1st Cir. 2020) (citation omitted). A factual dispute is “genuine” when the
evidence is such that a reasonable factfinder could resolve the issue in favor of the non-moving
party, and a fact is “material” where it might affect the outcome of the suit under the applicable
law. See Patco Constr. Co., Inc. v. People’s United Bank, 684 F.3d 197, 206-07 (1st Cir. 2012);
Morris v. Gov’t Dev. Bank, 27 F.3d 746, 748 (1st Cir. 1994). Courts must evaluate “the record
and [draw] all reasonable inferences therefrom in the light most favorable to the non-moving
part[y].” Est. of Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir. 2010) (citation omitted).
“Where, as here, a district court rules simultaneously on cross-motions for summary judgment, it
must view each motion, separately, through this prism.” Id. A non-moving party may “defeat a
summary judgment motion by demonstrating, through submissions of evidentiary quality, that a
trialworthy issue persists.” Paul, 948 F.3d at 49 (citation omitted). Where the non-moving party
bears the ultimate burden of proof, the non-moving party “must present definite, competent
evidence to rebut the motion.” Mesnick, 950 F.2d at 822.

III. DISCUSSION
The Court must determine whether either party is entitled to judgment as a matter of law
on two claims. The first is whether the City violated the Establishment Clause when it did not
extend an invitation to TST or grant its request to present an invocation at a City Council
meeting. While TST does not claim that the City’s legislative prayer practice generally runs
afoul of the Establishment Clause, the Court still must consider whether the City Council’s
selection process for invocation speakers renders its legislative prayer practice unconstitutional.
The second is whether City Council’s invocation selection process burdens TST’s religious
beliefs in violation of Massachusetts free exercise law.
A. The Establishment Clause

The First Amendment, which applies to the states through the Fourteenth Amendment,
states that the government “shall make no law respecting an establishment of religion.” U.S.
Const. amend. I; Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). “The clearest command of
the Establishment Clause is that one religious denomination cannot be officially preferred over
another.” Larson v. Valente, 456 U.S. 228, 244 (1982). The City Council’s invocations are a
form of legislative prayer, a practice that “is deeply embedded in the history and tradition of this
country.” Marsh v. Chambers, 463 U.S. 783, 786 (1983). This practice “has coexisted with the
principles of disestablishment and religious freedom” from “colonial times through the founding
of the Republic and ever since.” Id. Legislative prayer “is meant to lend gravity to the occasion
and reflect values long part of the Nation’s heritage. Prayer that is solemn and respectful in tone,
that invites lawmakers to reflect upon shared ideals and common ends before they embark on the
fractious business of governing, serves that legitimate function.” Town of Greece v. Galloway,
572 U.S. 565, 582-83 (2014). Legislative prayer need not be nonsectarian. Id. at 580-81

(“Marsh nowhere suggested that the constitutionality of legislative prayer turns on the neutrality
of its content. . . . Nor did the Court imply the rule that prayer violates the Establishment Clause
any time it is given in the name of a figure deified by only one faith or creed.”). To be lawful,
the legislative prayer practice at issue must “fit[] within the tradition long followed in Congress
and the state legislatures.” Id. at 577.
1. Discrimination Against TST
TST does not claim that the City’s practice of opening City Council meetings with an
invocation violates the Establishment Clause. As TST explained at the motion hearing, the
essence of this action is an allegation of discrimination—TST claims that the City discriminated
against it because of its religious views when the City Council refused to invite TST to give the

invocation. The City counters that there is no evidence that its religious beliefs are the reason
TST did not receive an invitation to give an invocation, and the true question is whether the City
Council’s legislative prayer practice endorses or establishes a particular religion over another.
Establishment Clause jurisprudence is not a paragon of clarity on the issue of legislative
prayer. Although “historical patterns cannot justify contemporary violations of constitutional
guarantees,” Marsh, 463 U.S. at 790, “the Establishment Clause must be interpreted ‘by
reference to historical practices and understandings,’” Town of Greece, 572 U.S. at 576 (citation
omitted). While there are no bright-line rules or tests to apply to legislative prayer cases, the
Supreme Court has made it clear that “the prayer opportunity [cannot be] exploited to proselytize
or advance any one, or to disparage any other, faith or belief.” Marsh, 463 U.S. at 794-95; see
Town of Greece, 572 U.S. at 585 (“Absent a pattern of prayers that over time denigrate,
proselytize, or betray an impermissible government purpose, a challenge based solely on the
content of a prayer will not likely establish a constitutional violation.”). The ultimate question is

whether the legislative prayer practice “compelled its citizens to engage in religious observance,”
which is a “fact-sensitive” inquiry “that considers both the setting in which the prayer arises and
the audience to whom it is directed.” Town of Greece, 572 U.S. at 587.
There is even less guidance on the proof required for a discrimination claim in the
legislative prayer context of the Establishment Clause. However, the Supreme Court has
provided some direction on the issue. In Marsh v. Chambers, the Supreme Court found that a
state legislature’s prayer practice did not violate the First Amendment when “[w]eighed against
the historical background.” 463 U.S. at 793. There, a single clergyman of one denomination had
given prayers in the Judeo-Christian tradition for sixteen years and was paid at the public
expense. Id. The Supreme Court explained that “[a]bsent proof that the chaplain’s

reappointment stemmed from an impermissible motive,” his “long tenure does not in itself
conflict with the Establishment Clause.” Id. at 793-94. The Supreme Court articulated a similar
explanation decades later in Town of Greece v. Galloway:
[T]he Court disagrees with the view taken by the Court of Appeals that the town of
Greece contravened the Establishment Clause by inviting a predominantly Christian set
of ministers to lead the prayer. The town 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. That nearly all of the congregations
in town turned out to be Christian does not reflect an aversion or bias on the part of town
leaders against minority faiths. So long as the town maintains a policy of
nondiscrimination, the Constitution does not require it to search beyond its borders for
non-Christian prayer givers in an effort to achieve religious balancing. The quest to
promote “a ‘diversity’ of religious views” would require the town “to make wholly
inappropriate judgments about the number of religions [it] should sponsor and the relative
frequency with which it should sponsor each,” a form of government entanglement with
religion that is far more troublesome than the current approach.

572 U.S. at 585-86 (emphasis added).
Taken together, these cases suggest that allowing some individuals to give prayers at a
legislative session but not others due to “an aversion or bias . . . against minority faiths” or other
“impermissible motive” is discrimination in violation of the Establishment Clause. Id. at 585;
Marsh, 463 U.S. at 793. Other federal courts to consider similar claims have applied this same
approach. See Williamson v. Brevard County, 928 F.3d 1296, 1308 (11th Cir. 2019) (finding
that the selection process employed by a board of commissioners reflected “an aversion or bias
on the part of the [county] leaders against minority faiths” and had therefore failed to maintain “a
policy of nondiscrimination,” which indicated that “the prayer opportunity has been exploited to
proselytize or advance” a “class of religions to the exclusion of many others” (citations
omitted)); The Satanic Temple, Inc. v. City of Scottsdale, No. 18-CV-00621-PHX-DGC, 2020
WL 587822, at *2, 7 (D. Ariz. Feb. 6, 2020) (considering whether the city’s denial of the
plaintiff’s request to give an invocation was “because of ‘an aversion or bias . . . against minority
faiths’” and therefore in violation of the Establishment Clause (citation omitted)), aff’d The
Satanic Temple, Inc. v. City of Scottsdale, 856 Fed. Appx. 724, 726 (9th Cir. 2021) (“After
weighing the credibility of the witnesses, the district court properly concluded that TST had
failed to prove by a preponderance of the evidence that TST’s religious beliefs were a factor, let

alone a substantial motivating factor, in [the] decision not to approve TST to give a legislative
prayer.”).5

5 TST itself acknowledges that the “case-dispositive question is whether any of the decisionmakers intentionally
discriminated.” [Dkt. 113 at ¶ 3].
TST can prevail on its Establishment Clause claim if the evidence shows that the City’s
denial of TST’s request to give the invocation was based on TST’s religious beliefs. The City
provides ample evidence that the refusal to invite TST to give an invocation was not because of
TST’s religious beliefs. All of the evidence submitted suggests that individual City Councilors

invited speakers who served their constituents and were active in their communities, and TST did
not qualify as such. For example:
• In response to TST’s first request for an invocation, former Councilor Wu
explained that the invocation invitations are used to recognize leaders “who are
active in the community and organizations that are representative of their
districts.” [Dkt. 100-11 at 2].
• In a deposition, O’Donnell similarly stated that invitations are extended to people
the Councilors “have relationships with because of their districts,” such as “work
that the individual does in their districts or does for their constituents.” [Dkt. 100-

1 at 53:7-12].
• 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.” [Dkt. 100-13 at 2].
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. [See Dkt. 102 at 3]. 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.6 There is no evidence that other groups asked to give an invocation and an invitation
was then extended to them.7 [See Dkt. 100-6 at 121:19-23]. 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,”

6 While TST acknowledges that the “case-dispositive question is whether any of the decisionmakers intentionally
discriminated,” it maintains that “discoverable information” regarding such intent has been withheld from TST
because it was not allowed to take now-Mayor Wu’s deposition. [Dkt. 113 at ¶¶ 3-4]. The Court has already
discussed, on multiple occasions and at length, TST’s attempt to take Mayor Wu’s deposition. [See, e.g., Dkt. 96].
TST ignores the fact that the City Council is comprised of many members, and it chose to depose only former
Councilor Essaibi-George and one 30(b)(6) designee, even though the City identified several other 30(b)(6)
deponents, and the identities of other City Council members are publicly known. If relevant evidence is absent from
the summary judgment record, it is the result of TST’s own actions.

7 TST cites to an email exchange between City Councilors and representatives of the Jewish Community Relations
Council of Greater Boston (“JCRCGB”) to support its assertion that other groups have requested and received
invitations to give the invocation. [Dkt. 102 at 12; see Dkt. 104-1 at 24-25]. The emails themselves do not support
that conclusion. In that email exchange, the JCRCGB representatives write that they are excited to “showcase
GBJCL (our literacy program) at the September 26th City Council meeting.” [Dkt. 104-1 at 25]. They inquire,
“Would the invited clergy member have to be from the City of Boston or could we open it up to a Rabbi that is
involved in our programming? What does this actually look like during the meeting?” [Id. at 25]. These questions
are not a request for an invitation. In context, it is clear that the invitation to give the invocation had already been
extended to JCRCGB, and the organization’s representatives wanted to know whether they could select a rabbi from
the organization that is generally involved in their programming. [Id.]. There is no response to these questions
included in the email exchange. [See id. at 24-25]. Moreover, even if the rabbi the organization chose to give the
invocation was not from Boston—and the record is not clear on that matter—the organization is clearly Boston-
based.
“Warmer than Hell,” 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. [Dkt. 100-6 at 150:18-
21].
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. See https://www.boston.gov/departments/city-council#city-council-members. 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.
TST’s reliance on the City Council’s decision to end the stipend given to invocation
speakers is misplaced. Even if the Court assumes that City Council reviewed its stipend policy
as a result of receiving TST’s request for inclusion, the decision to terminate that practice does
not suggest discriminatory intent. While TST cites to Village of Arlington Heights v. Metro.
Hous. Dev. Corp., for the proposition that a change in the City Council’s process is evidence of
discrimination, Arlington Heights stands only for the proposition that “[d]epartures from the
normal procedural sequence also might afford evidence that improper purposes are playing a
role.” 429 U.S. 252, 267 (1977). There was no such departure and “improper” purpose here.
City Council did not give a stipend to one speaker and not to another; rather, it ended a practice
for everyone after it determined that the “best practice” was to stop the stipend. [See Dkt. 104-1
at 37-38]. Nor did City Council terminate the invocation practice entirely to keep one group

from participating; it simply eliminated a singular element of the practice—an element that says
nothing about how and why a speaker is selected. Despite TST’s claims otherwise, it is unclear
how the termination of the stipend demonstrates “aversion or bias” based on religious beliefs.
Town of Greece, 572 U.S. at 585. The decision to end the stipend affected all invocation
speakers equally.
The Court would be remiss not to acknowledge the differences between Town of Greece
and this case. In Town of Greece, the town 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.” 572 U.S. at 585. Such practices would support a
finding that there has been no Establishment Clause violation. The City Council here does

neither of these things. Instead, invocation speakers are invited at the discretion of the individual
City Councilors, which heightens Establishment Clause concerns. The evidence on record,
however, suggests that the City Councilors’ discretion was not exercised in such a way that
individuals or groups were excluded from giving an invocation because of their religious beliefs.
The City Council did not allow some requests while denying others, and the City Councilors’
primary motivation in inviting an invocation speaker, based on the evidence before the Court,
has always been the individual or organization’s involvement in the community. While the
Court understands TST’s desire to enjoy what it describes as the “benefit” of sharing its message
in this forum, the record is simply devoid of any evidence that would support the conclusion that
the failure to extend an invocation invitation to TST stemmed from an “impermissible motive.”
Marsh, 463 U.S. at 793.
2. City Council’s Legislative Prayer Practice as a Whole
In their briefs, the parties discuss a number of cases that have considered the

constitutionality of various legislative prayer practices. See Town of Greece, 572 U.S. at 565;
Marsh, 463 U.S. at 783; Lund v. Rowan County, 863 F.3d 268 (4th Cir. 2017); Bormuth v.
County of Jackson, 870 F.3d 494 (6th Cir. 2017); Rubin v. City of Lancaster, 710 F.3d 1087,
1097 (9th Cir. 2013). The case before this Court is unlike those cases. In those cases, the
plaintiffs brought broad challenges against the government’s legislative prayer policies and
practices. They argued that the government’s actions, through its legislative prayer, had the
effect of placing an “official seal of approval” on Christianity. Rubin, 710 F.3d at 1097; see
also, e.g., Lund, 863 F.3d at 274 (plaintiffs arguing that “the Board, by delivering exclusively
Christian prayers, affiliated the county with Christianity, advanced Christianity, and coerced the
plaintiffs into participating in religious exercises”). TST makes no such claim here. TST instead

asserts that it was discriminated against when it asked for and was denied an opportunity to give
the invocation at a City Council meeting. [Dkt. 102 at 2-3]. As explained, it was not. And even
if the Court assumes that TST does claim, like the plaintiffs in the cases that have come before
this, that City Council’s legislative prayer practice as a whole violates the Establishment Clause,
TST’s Establishment Clause action fails.
Because there is no definitive test to apply to legislative prayer challenges, it is necessary
to understand how previous courts have evaluated this issue. In Marsh, the Supreme Court
evaluated a “challenge to the practice of opening sessions with prayers by a State-employed
clergyman.” 463 U.S. at 786. It found that the state’s practice did not run afoul of the
Establishment Clause after examining the “features” of the legislature’s practice: a clergyman of
only one denomination had been selected for sixteen years; the chaplain was “paid at public
expense”; and the prayers offered followed “the Judeo-Christian tradition.” Id. at 793. In Town
of Greece, the Supreme Court considered whether the town “impose[d] an impermissible

establishment of religion by opening its monthly board meetings with a prayer.” 572 U.S. at
569-70. There, the Court noted that the town “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,” though it stopped short of requiring such efforts in
legislative prayer cases. Id. at 585. The Supreme Court also determined that the offering of the
invocation did not compel “citizens to engage in a religious observance,” because the “principal
audience for these invocations is not, indeed, the public but lawmakers themselves,” and the
government had not “directed the public to participate in the prayers, singled out dissidents for
opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in
the prayer opportunity.” Id. at 587-88. The town board “at no point solicited . . . gestures by the

public,” such as standing, bowing their heads, or making the sign of the cross. Id. at 588.
Moreover, the town “neither reviewed the prayers in advance of the meetings nor provided
guidance as to their tone or content,” and the “prayers often sounded both civic and religious
themes.” Id. at 571. Under Town of Greece, the question is whether “the course and practice
over time shows that the invocations denigrate nonbelievers or religious minorities, threaten
damnation, or preach conversion,” which would suggest the prayer “fall[s] short of the desire to
elevate the purpose of the occasion and to unite lawmakers in their common effort.” Id. at 583.
Appellate courts have used Marsh and Town of Greece to evaluate similar legislative
prayer claims under the Establishment Clause. In Rubin v. City of Lancaster, the plaintiff
challenged a city council’s practice of opening its meetings with invocations, which were
frequently in the Christian tradition. 710 F.3d at 1090, 1095. The city compiled a database of
religious congregations with an established presence in the city and invited those groups to open
a city-council meeting with an invocation. Id. at 1089. The question at the heart of the case was

“whether the City itself has taken steps to affiliate itself with Christianity” through its legislative
prayer practices. Id. at 1097. Given the “litany of neutrality-enforcing safeguards,” the Ninth
Circuit held that it had not. Id. The court described these safeguards: “No person attending a
city-council meeting, including a city employee or official, is required to participate in any
prayer. No volunteer is paid to pray. Neither the council nor the clerk may engage in any prior
inquiry, review of, or involvement in, the content of any prayer to be offered. Moreover, the
clerk has never removed a congregation’s name from the list of invitees or refused to include
one.” Id. (internal quotation marks omitted).
The Fourth Circuit confronted a similar question in Lund v. Rowan County. Four factors
convinced the court that the county’s legislative prayer practice violated the Establishment

Clause. See 863 F.3d at 271-272. First, the government actors themselves, elected members of
the county’s board of commissioners, gave the prayers. Id. at 277. These “elected officials
[therefore] took up a ministerial function.” Id. at 290. Moreover, the content of the prayers was
“entirely at the discretion of the commissioner.” Id. at 273. Second, the prayers were used to
proselytize. The prayers were “invariably and unmistakably Christian in content,” with several
prayers “confess[ing] sin and ask[ing] for forgiveness on the community’s behalf,” and others
“impl[ying] that Christianity was superior to other faiths” and “implor[ing] attendees to accept
Christianity.” Id. Third, the public audience was instructed to participate. For example, after
calling the meeting to order, the chairperson would ask everyone in attendance, including
constituents, to stand up, and a commissioner would then ask the community to “join him in
worship.” Id. at 272. Fourth, the “intimate setting of a municipal board meeting present[ed] a
heightened potential for coercion.” Id. at 287. The Fourth Circuit emphasized the need to look
at the “totality of the circumstances”—the “crucial interaction between the elements”—when

evaluating legislative prayer practices under the Establishment Clause. Id. at 289. In Bormuth v.
County of Jackson, the Sixth Circuit evaluated a similar challenge to legislator-led prayer,
considering largely the same factors but reaching the opposite conclusion on the record before it.
870 F.3d at 512.
From these cases, the Court gleans five general factors to consider when evaluating broad
challenges to a legislative prayer practice: (1) the identity of the speaker; (2) whether the speaker
is paid to give a prayer; (3) the government’s review of the speaker’s chosen prayer content; (4)
whether the nature of the prayer proselytizes or denigrates other religions; and (5) the selection
process.8
As to the first factor, the City Council’s invocation speaker is a guest, often a member of

the clergy, not the City Councilors themselves. Contrary to TST’s assertions, the fact that these
speakers are selected by individual City Councilors does not require the Court to conclude that
the “[C]ouncil members might as well be the sole providers of invocations.” [Dkt. 102 at 16].
This argument ignores the fundamental differences in lawmaker-led prayer and prayer led by
guest speakers. See Lund, 863 F.3d at 278 (explaining that “lawmaker-led prayer . . . both
identifies the government with religion more strongly than ordinary invocations and heightens
the constitutional risks posed by requests to participate and by sectarian prayers”). When

8 The particular setting, e.g., that of a municipal board meeting versus a state legislature, has not been considered by
the majority of courts, and this Court does not find it necessary to evaluate that factor now. Even if it did, the Court
notes that the invocation here occurs right after roll call, before the City Council’s official business begins, which
lessens any concerns of possible coercion. See Lund, 863 F.3d at 287.
government actors “themselves, not guest ministers, [lead] the community in prayer” and
“compose[] each invocation ‘according to their personal faiths,’” there is “much greater and
more intimate government involvement.” Id. Such is not the case here.
While the majority of City Council’s invocation speakers have been undoubtedly of a

Christian denomination, speakers of other denominations and laypeople have also been asked to
give the invocation. [See Dkt. 112 at ¶¶ 24-31]. The inclusion of rabbis, an imam, and
laypersons allows for a “‘diversity’ of religious views.” Town of Greece, 572 U.S. at 585-86.
While there could be even more diversity of speakers, the fact that the majority of speakers have
been of a Christian denomination is not a sufficient basis to determine that City Council’s
invocation practice violates the Establishment Clause. See Marsh, 463 U.S. at 793 (“We, no
more than Members of the Congresses of this century, can perceive any suggestion that choosing
a clergyman of one denomination advances the beliefs of a particular church.”); Town of Greece,
572 U.S. at 570-71, 584-85; Brevard, 928 F.3d at 1310 (“We have found no Establishment
Clause problems presented when local governments mostly invited Christian volunteer

invocation-givers, so long as this was reasonably reflective of the community’s demographics
and did not advance a single faith.”). Furthermore, the Court must view this fact in combination
with the other facts before it.
As to the second factor, it is undisputed that the invocation speakers received a stipend
for their participation until 2016 or 2017 when the practice ceased. [See Dkt. 112 at ¶¶ 9-10].
The evidence suggests that the stipend was nominal, and speakers received no other financial
benefits. [See id. at ¶ 10; see also Dkt. 100-7 at 16:2-4]. Given the nominal financial amount at
issue, and the fact that the practice has not existed for at least five years, the Court is not
persuaded that this feature of City Council’s historical legislative practice violates the
Establishment Clause, particularly when viewing the facts as a whole. See Marsh, 463 U.S. at
794 (“Nor is the compensation of the chaplain from public funds a reason to invalidate the
Nebraska Legislature’s chaplaincy . . . .”).
Regarding the third consideration, there is no evidence that the City Councilors review or

are otherwise involved in the speaker’s prayer selection. See Town of Greece, 572 U.S. at 571
(“Greece neither reviewed the prayers in advance of the meetings nor provided guidance as to
their tone or content . . . . The town instead left the guest clergy free to compose their own
devotions.”). The evidence instead shows that the speakers determine and write their own
invocations. [See Dkt. 100-7 at 29:16-18 (“I usually write my invocations depending on what is
going on or what time or year something is happening.”)].
As to the fourth factor, whether the nature of the prayers given at City Council meetings
evinces “a pattern of prayers that over time denigrate, proselytize, or betray an impermissible
government purpose,” the evidence on record suggests that it does not. Town of Greece, 572
U.S. at 585. There are few examples of City Council invocations in the record before this Court,

especially when considering that the City Council meets every week. Of the three examples, all
of the speakers direct their prayer largely toward the City Council itself. One speaker explicitly
notes, “I pray for each member of the Boston City Council,” asking the Lord to give them
understanding, wisdom, and knowledge as they proceed with their duties. August 2021 Video at
7:17-9:49. Another speaker reads from the Koran and then implores the City Councilors to get
to know one another outside of the walls of City Hall, as they represent the people, and the more
they can come together, the more the people benefit. April 2023 Video at 8:35-9:34. In the third
video, the speaker thanks the Lord for the service of the City Councilors and asks the Lord to
remind them that “nothing is too hard” and to guide them to be the “best politicians, the best
governing body that this nation has ever seen.” September 2016 Video at 5:57-9:57. To be sure,
each of the speakers incorporates religious references, sometimes beginning with, “Let us pray,”
and reading from holy books, “but they also invoked universal themes, as by . . . calling for a
‘spirit of cooperation’ among town leaders.” Town of Greece, 572 U.S. at 584. In other words,

the invocations included “both civic and religious themes” and largely serve “to elevate the
purpose of the occasion and to unite lawmakers in their common effort.” Id. at 571, 582-83.
Indeed, it appears that the “principal audience for these invocations is not . . . the public but
lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to
a higher purpose and thereby eases the task of governing.” Id. at 587. Such prayers “do not fall
outside the tradition [the Supreme] Court has recognized” as allowed by the Establishment
Clause. Id. at 584. None of the prayers, at least those in the record before the Court, “denigrate
nonbelievers or religious minorities, threaten damnation, or preach conversion,” even with their
references to a deity or prayer. Id. at 582-83.
Moreover, the prayers do not demonstrate an intent to force “citizens to engage in a

religious observance.” Id. at 587. In one video, the City Councilor asks people to rise for the
invocation and the Pledge of Allegiance. At no point in the other two videos do City Councilors
ask the public to rise for the invocation, nor do any of the videos indicate any requests from City
Councilors to bow heads, make the sign of the cross, or participate in any similar gestures. The
singular instance on record of a City Councilor asking everyone to rise—not just for the
invocation, but also for the Pledge of Allegiance—does not suggest a “pattern of prayers” that
violates the Establishment Clause by “direct[ing] the public to participate in the prayers,
singl[ing] out dissidents for opprobrium, or indicat[ing] that their decisions might be influenced
by a person’s acquiescence in the prayer opportunity.”9 Id. at 588; see also Bormuth, 870 F.3d at
517 (“[W]e do not agree that soliciting adult members of the public to assist in solemnizing the
meetings by rising and remaining quiet in a reverent position is coercive. These ‘commonplace’
and ‘reflexive’ requests—whether from ministers or elected individuals following their own

faith’s normative cues—do not alone mandate participation, especially as most are preceded with
a polite ‘please.’” (citations omitted)). A City Councilor requesting the audience to stand for the
invocation and the Pledge of Allegiance is a far cry from asking the audience to “join . . . in
worship.” See Lund, 863 F.3d at 272.
That leaves us with the fifth factor, the process used to identify and invite invocation
speakers. While the Court has already evaluated City Council’s invocation speaker selection
process as it relates to TST’s particular claim of discrimination, it has not examined City
Council’s process generally. TST’s claim could be construed not as an individual allegation of
discrimination, but rather as alleging that the City’s legislative prayer practice generally violates
the Establishment Clause because the selection process is discriminatory.

9 In rebuttal to the City’s argument that the audience was not directed to stand for the invocation in the August 2021
Video, TST provides a link to another video for the first time in its reply in support of its motion for summary
judgment, stating that it “conflated” one invocation invitee with another. [See Dkt. 114 at 2]. The video is not
included in TST’s statement of facts or in its response to the City’s statement of facts. “[A]rguments raised for the
first time in a reply memorandum will not be considered,” and TST’s claim that it “conflated” one invitee with
another does not convince the Court that the video is properly before the Court. Facey v. Dickhaut, 91 F. Supp. 3d
12, 22 (D. Mass. 2014). Even if the Court does consider the video, it does not change the Court’s review. In that
video, which is from a September 2018 City Council meeting, the former City Council President asks “the guests
[to] please rise as Councilor Essaibi-George comes up to introduce our clergy for the day . . . and remain standing as
Councilor Essaibi-George leads us in the Pledge of Allegiance.” https://www.youtube.com/watch?v
=NTXFgOjpbTE at 1:33-1:46. As in the other video, the public is asked to stand not just for the invocation but also
for the Pledge of Allegiance. And two examples in which the public is asked to stand does not, any more than the
one example properly before the Court, convince the Court that there is a “pattern” of forced public participation.
See Town of Greece, 572 U.S. at 589; Bormuth, 870 F.3d at 571. Moreover, when asked whether it was “normal” to
ask everyone to stand for the invocation and Pledge of Allegiance, former Councilor Essaibi-George responded, “I
don’t know whether I characterize it as normal. Every [C]ouncil [P]resident or whoever’s leading the body,
sometimes phrases it in different ways. Sometimes there are [C]ouncilors and—and whoever’s in the chamber is not
necessarily asked, stands on their own, if they’re able. So I actually don’t know whether I’d say that’s normal.”
[Dkt. 113 at 24]. While she acknowledges that there may be “an expectation that people generally stand during the
prayer,” that is a far cry from a consistent request from a City Councilor to the public to stand only for the
invocation. [Id.].
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. Brevard, 928 F.3d at 1314. The ultimate question is whether the City “maintains a
policy of nondiscrimination” in the way it chooses invocation speakers. Town of Greece, 572
U.S. at 585. In other words, the “issue lies in how the [Councilors] exercised their discretion in
practice.” Brevard, 928 F.3d at 1314-15.
The evidence the City provides shows that it does maintain a policy of nondiscrimination,
and TST fails to provide evidence that the City Councilors “exercised [their] plenary discretion

in plainly unconstitutional ways.” Brevard, 928 F.3d at 1312. Speakers from a variety of
Christian denominations, rabbis, and leaders of other faiths, including an imam, in addition to
laypeople, have been asked to give the invocation at City Council meetings. All evidence before
the Court indicates that City Councilors choose invocation speakers not because of the religion
they are affiliated with, but because of their involvement in the communities the Councilors
represent. TST’s own briefing repeatedly suggests—without evidence—that invocation
invitations are reserved for “political allies,” not certain religious groups. [See, e.g., Dkt. 102 at
8]. Of course, this is not a case where City Council “at no point excluded or denied an
opportunity to a would-be prayer giver,” nor has City Council made “reasonable efforts to
identify all of the congregations located within its borders,” as in Town of Greece. 572 U.S. at
571, 585. City Councilors did, in fact, deny one request—TST’s—to give an invocation, and
speaker selection is left to each City Councilor’s individual discretion. But, as the Court has
already explained, here, the rejection of one group (there are no other rejections on record)10 who

had been previously unknown to the City Councilors does not constitute a violation of the
Establishment Clause. Moreover, the evidence before the Court suggests that the City
Councilors’ discretion generally has been exercised within the limits of the Establishment
Clause, as nothing in the record suggests that the selection or exclusion of speakers is based on
religious beliefs rather than community involvement.
This case is unlike Williamson v. Brevard County, which found that a county board’s
selection process rendered its legislative prayer practice unconstitutional. 928 F.3d at 1314-15.
In Brevard, the evidence suggested that the commissioners used their plenary discretion “to
discriminate on the basis of religious beliefs, favoring some monotheistic religions over others
and disfavoring and excluding—at least—religions that are polytheistic, pantheistic, or otherwise

outside of the ‘mainstream.’” Id. at 1311. This evidence included statements from the
commissioners themselves which indicated that they considered “the specific religious beliefs of
a prospective invocation-giver” and that “certain religions or types of religions would be flatly
banned from giving an invocation.” Id. at 1313-14. The court found that these comments
reflected “an aversion or bias on the part of [county] leaders against minority faiths,” and a “fair

10 TST provides an email dated December 12, 2020, from Rajan Zed, “a Hindu leader,” in which he asks to read an
invocation at a City Council meeting. [Dkt. 104-1 at 46]. The recipients of the email are a number of City
Councilors. There is no indication that any of the Councilors responded. Even if the Court assumes Zed’s request
was not granted, this second denial fails to support a claim that the selection process is discriminatory. There is
nothing in the record regarding Zed’s congregation—merely that he is “a Hindu leader”— his involvement in the
community, or the City Councilors’ reasons for not extending an invitation to lead an invocation to Zed. If
anything, this email suggests that the City Council did, in fact, follow a non-discriminatory policy of not allowing
requests to give the invocation.
examination of the lengthy summary judgment record” showed that the “[c]ommissioners
consciously held and acted upon views about which religions and types of religious beliefs were
the right kind for invocations and which were not.” Id. at 1315. No such evidence exists here.
This is not to say that there must be a “smoking gun” indicating clear religious bias to find that

the City Council’s selection process fails to adhere to a policy of nondiscrimination, but there
must be something to suggest that the selection process reflects “an aversion or bias on the part
of town leaders against minority faiths.” Town of Greece, 572 U.S. at 585. On the summary
judgment record before this Court, the selection process here does not reflect such prejudice.
This is particularly true when the Court views the selection process in light of the other factors
discussed. When the Court considers the City Council’s legislative prayer practice as a whole, it
cannot say that “the prayer opportunity has been exploited to proselytize or advance any one, or
to disparage any other, faith or belief,” Marsh, 463 at 794-95, such that it “promote[s] a preferred
system of belief or code of moral behavior” in violation of the Establishment Clause, Town of
Greece, 572 U.S. at 581. Judgment must be awarded in favor of the City on TST’s

Establishment Clause claim.
B. Massachusetts Free Exercise Claim
The City also seeks summary judgment on TST’s claim that the City Council’s legislative
prayer practice burdens TST’s free exercise of religion under Massachusetts law. See Mass.
Gen. Laws. Const. amend. art. 46, § 1. The question is whether the state action complained of
“substantially burdens [the] free exercise of religion, and, if it does, whether the [government]
has shown that it has an interest sufficiently compelling to justify that burden.” Society of Jesus
of New Eng. v. Massachusetts, 808 N.E.2d 272, 279 (Mass. 2004) (first modification in original).
“The party claiming an unconstitutional burden on the free exercise of religion must show (1) a
sincerely held religious belief, which (2) conflicts with, and thus is burdened by, the state
requirement. Once the claimant has made that showing, the burden shifts to the state” to
demonstrate “both that the (3) requirement pursues an unusually important governmental goal,
and that (4) an exemption would substantially hinder the fulfillment of the goal.” Id. (citation

and internal quotation marks omitted).
TST’s claim fails on the second prong of this analysis. See Curtis v. Sch. Comm. of
Falmouth, 652 N.E.2d 580, 587 (Mass. 1995) (“The preliminary inquiry in a free exercise
analysis is whether the challenged governmental action creates a burden on the exercise of a
plaintiff’s religion.”). 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.” [Dkt. 111 at 10]. 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).
IV. CONCLUSION
For the foregoing reasons, the City’s motion for summary judgment [Dkt. 98] is
GRANTED, and TST’s motion for summary judgment [Dkt. 101] is DENIED.
SO ORDERED.

Dated: July 31, 2023 /s/ Angel Kelley
Hon. Angel Kelley
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10201286. Public record. Not legal advice.