The Satanic Temple, Inc. vs. Hellerstedt – The Final Dismissal

• Introduction
• Case Background
• The Final Dismissal (in detail)
• The Satanic Temple’s response

It’s absolutely worth reading this dismissal — it’s not just a roast and a fun read for its own sake, but more importantly it’s a terrific tear down of why TST cannot be trusted with anyone’s abortion rights, and goes out of its way to disqualify itself on a fundamental level.

That’s why we’ll be going through it in some detail here.

The Satanic Temple, Inc. v. Hellerstedt full docket

Plaintiffs here are The Satanic Temple and one of its members, identified as Ann Doe. They filed this suit challenging the abortion laws of Texas before the Supreme Court issued its decision in Dobbs v Jackson Women’s Health, 142 S Ct 2228 (2022). After Dobbs, they sought and were granted leave to amend their complaint for the third
time. The operative complaint asserts claims under the religion and speech clauses of the First Amendment. Dkt 39. It now differs substantially from prior versions in that it contains almost no factual detail and makes broad, vague allegations without even identifying the laws being challenged. See Dkts 1, 12 & 26.

Defendant Cecile Young is Executive Commissioner of the Texas Health and Human Services Commission. Pending is her motion to dismiss the third amended complaint. Dkt 46. She argues that (i) Plaintiffs lack standing to sue, (ii) she is immune to suit, and (iii) the third amended complaint fails to state a claim.

The motion is granted. The complaint lacks sufficient factual allegations either to support Plaintiffs’ standing or to overcome Young’s immunity to suit. Further attempt at repleading won’t be allowed.

For a religion that constantly extols the value of beliefs (and actions) following evidence, TST is really bad at providing supporting evidence for its claims, including justification for why they’re bringing action against a particular person.

This happens in suit after suit.

1. Background
The third amended complaint is spare and unusually cryptic. For instance, The Satanic Temple is alleged to be “a religion.” Dkt 39 at ¶ 4. But what its belief structure entails and how Texas law was applied against it isn’t meaningfully explained. Also unstated is how those laws impacted Ann Doe herself, who is included in the caption, but about whom nothing more is said.

Similarly obscure is the nature of Plaintiffs’ action against Defendant Cecile Young. Given oblique reference to her title in the caption, Young is presumably named in her official capacity as the Executive Commissioner of the Texas Health and Human Services Commission. Little else is said about her. It’s certainly not clear what she’s allegedly done, or when, how, or to whom she did it.

The third amended complaint overall devotes only five
pages to the narrative and causes of action. Much is left to
conjecture.

This is familiar territory for us personally, having beaten the Temple’s abusive SLAPP litigation in federal court on the basis that TST failed to establish as plausible the court’s jurisdiction over the few allegations they even bothered to frame.

Wait, why is The Satanic Temple (still) suing you?

Reminder: jurisdiction is so fundamental to the concept of due process that a plaintiff has to actively establish it before anything else. Hell, a judge has the power to proactively raise the matter of jurisdiction if it becomes lost or otherwise unclear at any point, that’s how big a deal it is.

Petitioner points out that this case presents questions of fundamental national importance calling for final resolution by this Court. But the importance of an issue should not distort the principles that control the exercise of our jurisdiction.

 Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001)

So when TST apologists try to obfuscate their defeats as having been due to “technicalities” rather than what they really are, keep in mind what actually happened: TST got caught out on its multilateral ignorance and contempt for the rule of law.

2. Standing
Federal courts are ones of limited jurisdiction. Howery v Allstate Insurance Co, 243 F3d 912, 916 (5th Cir 2001). Subject-matter jurisdiction is thus inherently a threshold matter. Steel Co v Citizens for a Better Environment, 523 US 83, 94–95 (1998). A decision to hear a case that’s beyond the subject-matter jurisdiction of a federal court isn’t a “mere technical violation,” but is instead “an unconstitutional usurpation” of power. Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 3522 (West 3d ed April 2022 update).

Dismissal is appropriate “when the court lacks the statutory or constitutional power to adjudicate the claim.” In re Federal Emergency Management Agency Trailer Formaldehyde Products Liability Litigation, 668 F3d 281, 286 (5th Cir 2012). Rule 12(b)(1) permits a defendant to seek such dismissal. Once put at issue, the party asserting jurisdiction has the burden to establish by a preponderance of the evidence that it properly exists. New Orleans & Gulf Coast Railway Co v Barrois, 533 F3d 321, 327 (5th Cir 2008). Indeed, a presumption against subject-matter jurisdiction “must be rebutted by the party bringing an action to federal court.” Coury v Prot, 85 F3d 244, 248 (5th Cir 1996).

This includes objection to the standing of the plaintiff
to assert a claim.

The Satanic Temple fails to show standing here in multiple ways with regards to their “Ann Doe” — TST doesn’t show any plausible injury here, doesn’t show a source of that injury, doesn’t connect that source to Cecile Young, and doesn’t show why what the Temple does want from Young would cure that injury.

As to Ann Doe, the third amended complaint fails to allege any facts about her or her circumstances. Indeed, it doesn’t even mention her in the section purporting to describe the parties to the action. See Dkt 39 at ¶¶ 4–9. With no facts about her pleaded, no injury-in-fact is plausibly alleged. Even were injury assumed, traceability of any such injury is a mystery because no particular action against her by Young is alleged. Yet even assuming a traceable injury, nothing suggests redressability. The only relief requested against Young is that she be ordered “to recognize a religious exemption for abortion.” Dkt 39 at 6. But the motion argues—on a point to which Plaintiffs make no response—that “the physicians who perform abortions in Texas will still be subject to criminal prosecution,” with Young having “no connection to or control over any of the district attorneys or other prosecutors throughout Texas.” Dkt 46 at 10–11, citing Tex Health & Safety Code § 170A.001 et seq.

We are but humble shitposters, but we have to ask: what good does it do anyone, exactly, to extract a (false) recognition of a religious abortion exemption from someone who has no power to convert that recognition into the prevention of state violence against abortion seekers?

TST loves its petulant shell games with names. It knowingly registers false information with secretaries of state around the country to feed its bloated persecution complex. That phony mystique works against TST once more, while again showcasing their contempt for the issues at stake.

As to The Satanic Temple, the third amended complaint makes no attempt at showing the entity’s own potential for individual standing. Nothing suggests that the unspecified religious statutes are directed at it. See Dkt 39 at ¶¶ 15–16. Nor does the third amended complaint state that The Satanic Temple is itself prohibited from doing any particular thing. Instead, it asserts only that “the congregants tried to engage in the ritual” but were “unsuccessful.” See id at ¶¶ 25 & 27. This serves only to focus inquiry on the circumstances of individual members. And for an association to have standing to sue on behalf of its members, it must show that “its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth Inc v Laidlaw environmental Services (TOC) Inc, 528 US 167, 181 (2000). At best, the third amended complaint describes in bare terms the beliefs of adherents, without in any way alleging facts about what happened to any one of them. And given the private, medical nature of the underlying subject matter, it seems likely that the participation of individual members will be necessary in some respects. At the very least, The Satanic Temple hasn’t met its burden to muster proof in that regard.

Final procedural note on standing: not only are the allegations made by The Satanic Temple factually insufficient, but TST actively chose not to include the documentation of facts that might have made the difference!

What year in law school do they cover “cite your fucking sources”?

Anyone?

It’s also inappropriate to consider facts contained in other documents on the record. Such items weren’t even pleaded as allegations in the first place. It was thus incumbent on Plaintiffs to include any such facts in their third amended complaint or, at the very least, to incorporate them by reference. They did no such thing. Instead, they allege plainly insufficient facts to support standing as to both Ann Doe and The Satanic Temple.

Simply put, by failing to make anything beyond conclusory allegations in their third amended complaint, Plaintiffs’ pleading reads as one asserting nothing more than a “generalized grievance” on behalf of Plaintiffs against the abortion laws of Texas. See Lujan, 504 US at 575. That’s insufficient to support standing. Dismissal will be entered on this basis.

The next section covers sovereign immunity. Basically, state officials are immune from being sued over their execution of state policy and are treated as interchangeable with the state itself. However, an exception can apply if the plaintiff is able to show why a particular official is related to the enforcement of the law being challenged.

This is to say that once again, specificity matters.

GUESS WHAT HAPPENS NEXT?

3. Sovereign immunity
Briefing of the motion to dismiss proceeds on the mistaken assumption that the Texas Health and Human Services Commission has itself been named in the third amended complaint. See Dkt 46 at 12–14. It hasn’t. But had it been, sovereign immunity would surely pertain and require dismissal. The Commission is a state agency. For example, see Tex Govt Code § 531.021(a); Simmons v Smith, 774 F Appx 228, 229 (5th Cir 2019). And the Fifth Circuit holds, “State agencies are entitled to Eleventh Amendment sovereign immunity.” City of Austin v Paxton, 943 F3d 993, 1003 (5th Cir 2019).

Instead, only Cecile Young is named, identified in the caption in her official capacity as the Executive Commissioner. See Dkt 39 at 1. Sovereign immunity extends to her actions in that regard insofar as suits against state officials in their official capacities are treated as suits against the state. Russell v Jones, 49 F4th 507, 513 (5th Cir 2022). Even so, the Supreme Court long ago recognized a limited exception to sovereign immunity, in Ex parte Young, 209 US 123 (1908), that permits “suits for prospective injunctive relief against state officials acting in violation of federal law.” Frew ex rel Frew v Hawkins, 540 US 431, 437 (2004). For the exception to apply, the state official must have “some connection” to enforcement of the challenged statute—meaning that he or she must have “the particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty.” Morris v Livingston, 739 F3d 740, 746 (5th Cir 2014) (citation omitted).

Young argues that the third amended complaint is so devoid of explanation that Plaintiffs fail to demonstrate that any exception to sovereign immunity applies. Dkt 46 at 12–14. Plaintiffs don’t respond to this argument in any meaningful way. They simply (and flatly) cite Ex parte Young and assert liability. See Dkt 52 at 7. But it isn’t up to this Court to ponder what specific argument this entails, to theorize what the best argument in this regard might be, or to imagine how they might be connected to facts that haven’t been pleaded.

Failure to brief a point forfeits opposition to that point. See Henderson v Wells Fargo Bank NA, 974 F Supp 2d 993, 1017 (ND Tex 2013), citing Black v North Panola School District, 461 F3d 584, 588 n 1 (5th Cir 2006). Action against Young will be dismissed on this basis.

If you guessed “TST would invoke the existence of the exception and then refuse to substantiate it, pretending that mentioning the exception ought be the same as an argument that that exception applies here,” give yourself a damn cookie.

“You can’t just say ‘perchance’ ”
– the Judge, probably

TST has been described in other suits as having a comic-book understanding of how information and power flow through local government, and that’s on full display here.

But dismissal is also appropriate even apart from forfeiture. Challenge under Rule 12(b)(1) is the appropriate means by which to assert immunity to suit. See Warnock v Pecos County, 88 F3d 341, 343 (5th Cir 1996). The standards stated as to standing thus pertain equally here. And as above, the pleading in the third amended complaint is so bare that it cannot hope to establish the applicability of the Ex parte Young exception. What’s being challenged? No particular statute is even cited, with reference instead only to unspecified “religious statutes” that “legislators enacted” and “Young enforced.” Id at ¶¶ 15 & 26. How is Young involved in their enforcement, and how, when, why, and in what way did she apply them to Plaintiffs? Unknown. The unelaborated allegations are solely that she was “authorized . . . to interfere with the ritual,” “enforced the religious statutes,” and “stopped the ritual.” Id at ¶¶ 24, 26 & 28.

“She interfered with the ritual (source: trust me, bro).”

Final note on sovereign immunity, basically a TLDR of how badly TST failed to argue against it.

Again: naming defendants who are barely related to the cause of action, using them as hostages for siege warfare litigation, and refusing to elaborate is a bad strategy, mkay?

This concern on immunity overlaps somewhat with argument that the third amended complaint fails to state a claim under Rule 12(b)(6). For example, see Bell Atlantic Corp v Twombly, 550 US 544, 570 (2007); Ashcroft v Iqbal, 556 US 662, 678 (2009). But overcoming assertion of sovereign immunity is itself subject to the mandate of Rule 8(a)(2) requiring “a short and plain statement of the claim showing that the pleader is entitled to relief.” The operative complaint cites Ex parte Young and recognizes it must be met in both causes of action. See Dkt 39 at ¶¶ 33 & 44. But Young’s immunity with respect to enforcement of restrictions on access to abortion services depends upon knowing her obligations and discretion under particular statutes. Yet no statutes are cited or explained. This makes it impossible to discern any “particular duty [of Young] to enforce the statute in question” or her “demonstrated willingness to exercise that duty.” Morris, 739 F3d at 746. In addition to dismissal for lack of standing, dismissal will be entered as to sovereign immunity.

We also need to talk about the final part (discussion on whether TST should be allowed to amend its argument yet again) because it shows why the narrative that “The Temple loses because the courts are biased against TST” is bullshit, a persecution narrative tailored to be propagated via word-of-mouth by Reddit atheists and clickbait bloggers far enough removed from the core issues as to feel justified not even doing the due diligence of reading the docket directly.

The Satanic Temple filed its initial complaint in February 2021. They got leave to amend that complaint later that month, and again in May 2021. The case was stayed in August 2021 pending the Dobbs decision, and TST was then granted leave to amend its complaint again after June 2022.

Not only was TST given four separate chances to make the best complaint it could, but it was explicitly spelled out for them that the fourth time was their opportunity to take into account any other changes in law that had resulted from Dobbs in the interim.

But whether to grant leave to amend is within the sound discretion of the district court. Pervasive Software Inc v Lexware GmbH & Co KG, 688 F3d 214, 232 (5th Cir 2012), quoting Wimm v Jack Eckerd Corp, 3 F3d 137, 139 (5th Cir 1993). It may be denied “when it would cause undue delay, be the result of bad faith, represent the repeated failure to cure previous amendments, create undue prejudice, or be futile.” Morgan v Chapman, 969 F3d 238, 248 (5th Cir 2020), citing Smith v EMC Corp, 393 F3d 590, 595 (5th Cir 2004).

Plaintiffs initiated this action in February 2021 with their original complaint. Dkt 1. They filed a first amended complaint as of right later that month. Dkt 12. They then sought and obtained leave to file a second amended complaint in May 2021. Dkt 26; see also Dkts 24 & 25. Each of these prior iterations approached twenty pages in length and contained essential details about the subject statutes and parties. See Dkts 1 at ¶¶ 58–83, 12 at ¶¶ 58–84 & 26 at ¶¶ 58–88.

Defendants named in the second amended complaint
included Texas Health and Human Services Commission
and Young. Dkt 26 at ¶¶ 11–12. They moved to dismiss,
arguing that Plaintiffs lacked standing and that they failed
to state plausible claims, including as to a substantive-dueprocess claim asserted under Planned Parenthood of
Southeastern Pennsylvania v Casey, 505 US 833 (1992). Dkt 28. Following lengthy hearing in August 2021, this action was stayed pending decision in Dobbs v Jackson Women’s Health Organization, which by then the Supreme Court had determined to hear. See Dkt 33; see also 141 S Ct 2619 (2021) (granting certiorari). The motion to dismiss was later denied without prejudice to reassertion. See Dkt 34. In that latter order, Plaintiffs were specifically instructed to advise whether they would seek leave to file an amended complaint to account for any potential change in the law. See Dkt 34. They requested leave to do so in a status report entered after the decision in Dobbs. Dkt 37. That request was granted, resulting in the filing of the third amended complaint. See Dkts 38 & 39

The fact is that the court, here and around the country, actively gives TST the benefit of the doubt as a matter of black-letter law.

But no matter how high the stakes are, TST actively squanders that benefit every time, as thoroughly as possible This court is out of patience.

All of this was towards giving Plaintiffs the chance to replead and bring forward the best possible version of their claims. Yet they proceeded on that post-Dobbs opportunity to submit an exceedingly thin complaint, one far more diminutive than prior versions. And they did so in the face of a statutory landscape in Texas that had changed dramatically. This included a trigger law that took effect upon decision in Dobbs. See Tex Health & Safety Code §§ 170A.002–170A.007. As well, the never-repealed criminal statutes predating Roe became enforceable again. See Tex Rev Civ Stat §§ 4512.1–4512.4. Also post-dating the second amended complaint was the law permitting civil actions against physicians who perform abortions following detection of a fetal heartbeat. Tex Health & Safety Code §§ 171.204, 171.208.

When Texas passed a bill allowing random people to play bounty hunter against abortion seekers and providers, you know what TST was doing?

Fucking around in MS Paint, pretending to make a coherent legal argument via Venn diagrams.

To say this is inexcusable doesn’t quite underscore how fucking contemptible this is. This is an intentional waste of vast amounts of public donations and goodwill that TST spent years soliciting from the most desperate people in the country.

The judge rightly points out that TST is being far too negligent with their argument for it not to be on purpose, and highlights TST’s pattern of abusive and unethical legal “strategy” around the country.

Again: when you donate to TST, this is what they turn it into.

Given the detail of the prior complaints and these substantial changes in the law, the deficiencies in the operative complaint are no doubt intentional. And indeed, the filing of a willfully deficient amended complaint is of a piece with the mulish litigation conduct by counsel for Plaintiffs, Attorney Matt Kezhaya, in this and other actions representing The Satanic Temple. Recently considered in this regard was whether to revoke his permission to proceed pro hac vice in light of sanctions entered against him in other federal courts after his appearance here. For example, see Satanic Temple Inc v City of Belle Plaine, 2022 WL 1639514 (D Minn) (imposing sanctions for filing frivolous lawsuit); Satanic Temple Inc v City of Boston, 2022 WL 1028925, *6 (D Mass) (imposing sanctions for abusive subpoena practice). As summarized there:

This Court is similarly concerned about Attorney Kezhaya’s ability to practice in federal court in a professional and reasonable manner. For example, when initiating this action, he filed a motion for a temporary restraining order on February 5, 2021, with respect to an abortion scheduled the next day for Ann Doe—when his filings made clear that he could and should have sought such relief much earlier, if it was sincerely sought. See Dkts 2 (motion for TRO) & 9 (order denying relief). Following decision in Dobbs v Jackson Women’s Health, 142 S Ct 2228 (2022), he was granted leave to amend his complaint. Dkt 38. The amended complaint he filed is, charitably stated, cryptic. Dkt 39. He then filed a second motion for TRO containing negligible legal analysis, with six pages of the main analysis dedicated to presentation of what’s purported to be a five-act play. See Dkt 40 (motion). That motion itself was filed in a manner and on a schedule at odds with a briefing schedule on which Attorney Kezhaya had been consulted and to which he had agreed. See Dkt 42 (order). Worse still, he followed that motion up with an intemperate letter demanding instanter ruling, while threatening to seek mandamus relief from the Fifth Circuit. See Dkt 41. And most recently, as to a pending motion to dismiss, his response included a photograph apparently intended to shock the reader. See Dkt 52 at 6; see also Federal Rule of Evidence 403. Dkt 65 at 1–2.

TST’s lawyer submitted a five-act play for a brief that was already late, and resorts to threats and naked shock value in lieu of coherent, let alone compelling, legal arguments.

TST apologists have no idea how much “judicial bias” is actively working in their favor despite TST’s best efforts.

Litigation of constitutional claims is a serious matter. Such issues deserve serious attention from counsel desiring to be taken seriously. As it turns out, Plaintiffs might have been better served by proceeding pro se [representing themselves], as applicable standards would dictate that their filings would be “liberally construed” and “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v Pardus, 551 US 89, 94 (2007), quoting Estelle v Gamble, 429 US 97, 106 (1976) (cleaned up). Instead, Plaintiffs have mustered on with counsel of their choice, and he does very little to try and assist understanding of what their claims actually are.

And that’s the end of it, really – another defeat for TST in an unbroken line of defeats.

No religious exemption for abortion has been established in Texas, either for TST’s current members or for anyone who joins in the future.

Ann Doe was able to get the abortion she needed without a judge’s ruling – and that’s on the extremely generous assumption that she’s even a real person at all.

As far as we can tell from diving into TST’s contemporaneous fundraising emails and announcements throughout 2021, they raised something north of $300,000 for exactly this outcome.

lol “real question” indeedhttps://t.co/rdG5uau1Hq pic.twitter.com/3fTe53qmOv

— @QueerSatanic@kolektiva.social (@QueerSatanic) October 6, 2021

But clearly, TST didn’t care what the outcome would actually be — certainly not enough to pay extra to get a lawyer who might know how to make a competent argument without ratcheting himself slightly closer to disbarment instead.

And that’s because whatever benefits TST owners Doug Misicko’s and Cevin Soling’s bottom line is ultimately the only metric that matters for determining TST’s “success” as an institution. As far as they’re concerned, everyone else is expendable.

Thanks to any number of institutional barriers and the overwhelming power of negative partisanship in the United States, the only thing a “religious exemption” lawsuit has to do is exist, and donations will roll in from people who want to feel like “at least they’re doing something!”

It’s far more useful to think of TST’s “religious freedom” lawsuits as an extended ad campaign to sell the brand of TST. They exist solely to sell the idea that the fight against Christian fascism is as simple as donating and not asking what happens next.

It’s not at all hypocritical for them to pursue their SLAPP against us into the 9th Circuit, arguing for precedent that it should be easier for churches to weaponize the state against their critics. Protected speech and informed consent are a threat to their ability to sell TST.

But that predatory, capitalist worldview disqualifies them from being able to represent the most marginalized people in the country – let alone in their own membership. It’s not remotely surprising, in that regard, to watch them hemorrhaging members more frequently as of late.

A better world is possible — but TST has no interest in building it, because building that world necessarily means destroying the institutions that give TST the power to prey on others and pretend it has no choice.

Anyway, in the interest of fairness, in the last section, we’ll include what The Satanic Temple’s co-owner and national spokesman Doug “Lucien Greaves” Misicko said in his own words about all this, which you can compare to the judge’s opinion and your own eyes.