Case 1:21-cv-10102-ADB Document 21 Filed 07/21/21 Page 1 of 16 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS THE SATANIC TEMPLE, INC. * * Plaintiff, * * v. * Civil Action No. 21-cv-10102-ADB * CITY OF BOSTON, MA * * Defendant. * MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS BURROUGHS, D.J. Plaintiff The Satanic Temple, Inc. (“TST”) asserts four federal and state constitutional claims against Defendant City of Boston (“Defendant”): violation of the Establishment Clause of the United States Constitution (Count I); violation of the Free Speech Clause and the Free Exercise Clause of the United States Constitution (Count II); violation of the Equal Protection Clause of the United States Constitution (Count III); and violation of the Free Exercise Clause of the Massachusetts Constitution (Count IV). [ECF No. 16 (“Am. Compl.”)]. Currently before the Court is Defendant’s motion to dismiss TST’s entire complaint pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(1) based on lack of standing and to dismiss Counts I–III of TST’s complaint pursuant to FRCP 12(b)(6) for failure to state a claim. [ECF No. 17]. For the following reasons, the motion is GRANTED in part and DENIED in part. I. BACKGROUND A. Factual Background The following facts are drawn from the amended complaint and taken as true for the purposes of evaluating the motion to dismiss. See Ruivo v. Wells Fargo Bank, N.A., 766 F.3d Case 1:21-cv-10102-ADB Document 21 Filed 07/21/21 Page 2 of 16 87, 90 (1st Cir. 2014). As it may on a motion to dismiss, the Court has also considered “documents incorporated by reference in [the complaint], matters of public record, and other matters susceptible to judicial notice.” Giragosian v. Ryan, 547 F.3d 59, 65 (1st Cir. 2008) (alteration in original) (quoting In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 20 (1st Cir. 2003)). TST is a religious organization headquartered in Salem, MA. [Am. Compl. ¶ 20]. Its Boston metropolitan Chapter has 2,449 members. [Id. ¶ 21]. In 2016, 2017, and 2018, TST reached out to the Boston City Council, which opens each of its meetings with a prayer, asking to give the invocation. [Id. ¶¶ 12, 23; ECF No. 16-1]. Defendant denied those requests, explaining that City Councilors choose speakers from their communities for their assigned weeks, and that TST could not lead the prayer without an invitation from a City Councilor. [Am. Compl. ¶¶ 13, 24; ECF No. 16-2]. Those denials were made after members of the Boston public objected to the possibility of TST opening a City Council session with a prayer and in the wake of a public outcry and 2,000-person protest after TST attempted to stage a “Black Mass” at Harvard. [Id. ¶¶ 30–33, 37]. Over 233 City Council meetings from 2011 to mid-2017, 78.5% of the prayer-givers were Christian, 4.7% were Muslim, and 4.3% were Jewish. [Id. ¶¶ 59, 62–64]. There was also one Hindu and one secular prayer offered. [Id. ¶¶ 67-68].1 B. Procedural Background On October 17, 2018, TST brought a claim of discrimination in a place of public accommodation under Massachusetts General Laws Chapter 151B to the Massachusetts Commission Against Discrimination. [Am. Compl. ¶¶ 43–45]. Although the Commission ruled 1 The cited instances add up to only 88.5% of the prayer opportunities. The Amended Complaint does not specify the prayer-givers or the content of the remaining 11.5%. 2 Case 1:21-cv-10102-ADB Document 21 Filed 07/21/21 Page 3 of 16 that the City Council session was not a “place of public accommodation,” as defined by the statute, it did not rule on the constitutionality of Defendant’s selection scheme for legislative prayer-givers. [Id. ¶¶ 55–56]. On January 24, 2021, TST commenced the present action, [ECF No. 2], and on April 26, 2021, filed its amended complaint, alleging that the City unconstitutionally grants invitations to “preferred” religions while refusing to invite TST because of its “undesirable” status, [Am. Compl. ¶¶ 52, 58]. TST asks the court to declare that Defendant’s legislative prayer selection process violates the federal and state constitutions as it results in invitations to give an invocation being extended to representatives of some religious groups but not others and to enjoin that process. [Id. at 20]. II. LEGAL STANDARD A motion to dismiss for lack of constitutional standing is properly brought as a challenge to the court’s subject matter jurisdiction pursuant to FRCP 12(b)(1). See Katz v. Pershing, LLC, 672 F.3d 64, 70 (1st Cir. 2012). The party asserting federal jurisdiction has the burden of demonstrating its existence. Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998). Dismissal is appropriate only when the facts alleged in the complaint, taken as true and given all reasonable inferences, do not support a finding of federal subject matter jurisdiction. Fothergill v. United States, 566 F.3d 248, 251 (1st Cir. 2009). A challenge to the court’s subject matter jurisdiction must be addressed before addressing the merits of a case. See Acosta-Ramirez v. Banco Popular de Puerto Rico, 712 F.3d 14, 18 (1st Cir. 2013) (citing Donahue v. City of Boston, 304 F.3d 110, 117 (1st Cir. 2002)) (“Federal courts are obliged to resolve questions pertaining to subject-matter jurisdiction before addressing the merits of a case”). In reviewing a motion to dismiss under FRCP 12(b)(6), the Court must accept all well- pleaded facts as true, analyze those facts in the light most favorable to the plaintiff, and draw all 3 Case 1:21-cv-10102-ADB Document 21 Filed 07/21/21 Page 4 of 16 reasonable factual inferences in favor of the plaintiff. See Gilbert v. City of Chicopee, 915 F.3d 74, 76, 80 (1st Cir. 2019). “[D]etailed factual allegations” are not required, but the complaint must set forth “more than labels and conclusions,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), and must contain “factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory,” Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (internal quotations omitted) (citing Centro Médico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)). The alleged facts must be sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “To cross the plausibility threshold a claim does not need to be probable, but it must give rise to more than a mere possibility of liability.” Grajales v. P.R. Ports Auth., 682 F.3d 40, 44–45 (1st Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A determination of plausibility is ‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’” Id. at 44 (quoting Iqbal, 556 U.S. at 679). III. DISCUSSION Defendant moves to dismiss the amended complaint in its entirety under FRCP 12(b)(1), asserting that TST lacks standing for its Free Speech/Free Exercise Claim because it has not been injured by Defendant, and that, more broadly, its harms could not be redressed by a favorable decision. [ECF No. 17]. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). It also argues that, pursuant to FRCP 12(b)(6), TST’s claims under the Establishment Clause are barred by Supreme Court precedent and that TST has not plausibly stated claims for relief under the First and Fourteenth Amendments. [ECF No. 17]. 4 Case 1:21-cv-10102-ADB Document 21 Filed 07/21/21 Page 5 of 16 A. Standing The doctrine of standing is rooted in Article III of the Constitution, which confines federal courts to the adjudication of actual “cases” and “controversies.” See U.S. Const. Art. III, § 2, cl. 1; Lujan, 504 U.S. at 560–61. Standing consists of three elements: “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547, as revised (May 24, 2016) (quoting Lujan, 504 U.S. at 560–61). Where, as here, the question of standing is based on the pleadings, TST “bears the burden of establishing sufficient factual matter to plausibly demonstrate [its] standing to bring the action,” Hochendoner v. Genzyme Corp., 823 F.3d 724, 731 (1st Cir. 2016), taking all of the facts (and any inferences that follow) in the plaintiff’s favor, Gustavsen v. Alcon Lab’ys., Inc., 903 F.3d 1, 7 (1st Cir. 2018) (quoting Katz, 672 F.3d at 70–71). To establish injury in fact, a plaintiff must demonstrate “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560. “The particularization element of the injury-in-fact inquiry reflects the commonsense notion that the party asserting standing must not only allege injurious conduct attributable to the defendant but also must allege that he, himself, is among the persons injured by that conduct.” Hochendoner, 823 F.3d at 731–32. To establish redressability, a plaintiff must demonstrate that the alleged injury “is likely to be redressed by a favorable decision.” Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S.