BOSTON (CN) — The First Circuit struggled at oral arguments Tuesday with a claim that it is unconstitutional for the Boston City Council to bar a group of Satanists from offering an invocation at its meetings.
“Suppose this was 1920s Boston and Jewish temples weren’t invited to speak,” U.S. Circuit Judge William Kayatta said.
“I think you’d have a problem,” the city’s lawyer, Edward Whitesell, conceded.
“So why not here?” Kayatta asked.
“Because the record shows that a lot of other religions were invited” to give invocations, Whitesell answered.
Kayatta pressed on. “But there might have been a lot of other religions back then,” he said. “Methodists. Lutherans. Isn’t this the exact same thing except we’re substituting Jews for Satanists?”
The lawsuit was brought by the Satanic Temple, which was founded in 2013 and boasts that it’s the only Satanic organization that’s officially recognized as a religion by the IRS. It doesn’t believe in a literal Satan and operates in a gray area between a community of faith and a spoof of traditional religions, drawing many members from the LGBTQ community. Last year it attracted some 800 attendees to SatanCon, a gathering at the Boston Marriott.
The Boston City Council meets about three dozen times a year and typically begins meetings with a prayer, poem, or other introduction, usually from a local religious leader. City councilors have absolute discretion as to whom to invite. From 2016 to 2018 the Satanic Temple repeatedly requested to speak and was rejected.
The invocations date from the 1800s, and for years the city offered speakers a small stipend (a practice the temple calls “pray-for-pay”). But in 2017 the city abolished the payments at the suggestion of then-councilor Michelle Wu, now Boston's mayor.
The temple claims the invitations favor some religions over others and thus violate the establishment clause of the First Amendment. It lost in the trial court.
One city councilor stated that it would be “absurd” to invite the temple to speak because it’s headquartered not in Boston but in nearby Salem (home of the witch trials). Another called the temple’s request a “publicity stunt” and added, “I would not consider anyone that doesn’t have a positive impact on my community, my constituents, my family and me personally.”
In 2014, the U.S. Supreme Court held 5-4 that it's OK to start an official town meeting with a prayer. But in that case the town had compiled a list of local organizations and invited anyone who wanted to participate on a first-come-first-served basis, including the chairman of a Baha’i temple and a Wiccan priestess.
By contrast, Boston’s practice is “whim-based and politically motivated,” said the Satanic Temple’s attorney Matthew Kezhaya of Minneapolis. “One councilor testified that this is a political reward. That’s a problem.”
Boston’s policy has “the potential for serious establishment clause concerns,” agreed U.S. Circuit Judge Sandra Lynch, a Bill Clinton appointee. “The system is designed to further the political careers of the Boston city councilors by permitting them to invite whoever is politically advantageous. Let’s assume … there is a consistent pattern of councilors choosing the majoritarian religion of their district and going on with effusive praise. Could there be an as-applied establishment clause problem?”
Whitesell said the temple would have to prove an intent to discriminate, not just an intent to further a political career. “But that’s not the only route to an establishment clause issue,” said U.S. Circuit Chief Judge David Barron, a Barack Obama appointee. “If the selection criteria are whoever has the largest congregation,” he said, that would raise “very serious problems.”
Whitesell responded by insisting that the criteria aren’t merely political but also included recognizing civic leaders who had contributed to the welfare of the community. Kayatta, also an Obama appointee, then pressed Kezhaya on whether contributing to the community could be a valid selection criterion.
Kezhaya conceded that it could, but he argued that in practice it’s impossible to separate that from the religious aspect and that the test isn’t applied neutrally because who benefits the community is determined by “whatever the councilor feels like.” He also said that the city had gone further and endorsed particular religions with “two to three minutes of gushing praise” for specific ministers, which he called “religious gerrymandering.”
Before the Satanic Temple got involved, 94% of invocations were given by Christians and the council president often told everyone in attendance to stand for prayers, Kezhaya said.
Lynch asked if the Temple had contributed to Boston’s community welfare, and Kezhaya answered that it had participated in the city’s pride parade and distributed free tampons to the needy.
“I’m confused as to the criteria,” Kayatta complained. “Is it politics, or who did good deeds?”
“They go hand-in-hand,” Whitesell answered, but Kayatta wasn’t satisfied: “On a Venn diagram they would overlap, but not completely,” he noted.
Barron closed out the argument by asking Kezhaya what he wanted as a remedy — did he want the judges to strike down Boston’s prayer practice altogether, or did he want them merely to require the city to let the temple participate?
“We want in,” Kezhaya answered.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
