The Satanic Temple today asked a federal judge to reinstate the free-speech and freedom-of-religion sections of its lawsuit over the way the Boston City Council selects members of the clergy to start its meetings with an invocation.
In its request, filed in US District Court in Boston, the group relies heavily on a recent Supreme Court ruling that the city violated the First Amendment rights of Hal Shurtleff, a former Bircher who used to live in West Roxbury and his Darwin-rejecting, Federal Reserve-hating New Hampshire camp by refusing to let them fly a "Christian" flag on one of the three flagpoles on City Hall Plaza.
Separately, another federal judge today signed off on a deal that will let Shurtleff raise his flag for two hours at 11 a.m. on Aug. 3.
The Satanists sued the council last year, charging that the fact they could never get on the agenda to start one of the body's Wednesday meetings violated of their First Amendment right to free speech and their right to equal protection and charging the council with violating the Establishment clause barring government recognition of specific religions.
In a ruling last year, a federal judge dismissed the first two counts of the group's suit, but allowed it to press forward on the Establishment-cause count.
Judge Allison Burroughs concluded that no free-speech issues were involved because the council does not permit public comment at its Wednesday meetings, so they are not a "public forum" in the same way as council hearings, at which the public is invited to speak. Government, she added, has its own right to free speech and its Wednesday meetings are an expression of that. That councilors pick clergy members for their work in the community similarly means no equal-protection issues are at play, especially, she noted, in the case of the Satanic Temple, which is not based in Boston.
In today's request, though, Satanist lawyer Matthew Kezhaya argues that what the council is doing is "viewpoint discrimination" by limiting clergy to "Abrahamic religions and a few token minorities" and that the Shurtleff ruling determined that was unconstitutional even in a setting like a council meeting that is closed to public participation.
In Shurtleff, the Supreme Court held that Boston abused the Government Speech doctrine to further viewpoint discrimination. As clarified, speech is not "government speech" unless the government exerts "active control" over the subject of the message sought to be accommodated. Shurtleff, 142 S. Ct. at 1592. Short of "active control" by the government, the speech remains "private," and therefore free from government suppression. ...
The City engaged in unlawful viewpoint discrimination (barred by the Free Speech Clause) and unlawful religious coercion (barred by the Free Exercise Clause) when it refused TST's demand for an equal right to officiate this prayer ceremony. As vindicated by the unanimous Shurtleff Court, the order of partial dismissal reversibly erred by coming to a different conclusion. The Court should vacate the order of dismissal and entertain evidence and argument to the effect that Boston's legislative prayer custom violates TST's Free Speech and Free Exercise Clause rights.
Kezhaya filed his request with Judge Angel Kelley, who took over the case and who had sharp words for him over an attempt to force then City Councilor Michelle Wu to spend several hours answering questions at the Temple's Salem headquarters - on Election Day.