Christian Flag To Fly At Boston City Plaza
By Brendan McDonald, New Boston Post, August 2, 2022, 16:29 EDT
This week, a Christian flag is expected to fly at Boston City Plaza.
The event, taking place on Wednesday, August 3, is roughly five years in the making. In 2017, Harold “Hal” Shurtleff, director and co-founder of Camp Constitution, applied to fly a “Christian flag” bearing a cross on a flagpole in front of Boston City Hall. The city denied the request. Shurtleff applied again with no response.
Camp Constitution seeks “to enhance understanding of our Judeo-Christian moral heritage” and “our American heritage of courage and ingenuity.”
Typically four flags fly in front of Boston City Hall: the United States Flag, the POW/MIA flag, the Massachusetts state flag, and the Boston city flag.
On occasion, the city has allowed private organizations to apply to fly a different flag in place of the Boston flag. Between 2005 and 2017, the following flags flew above Boston City Plaza, according to court papers filed by Shurtleff’s lawyers:
- The flag of Boston Pride, a homosexuality-advocacy group (5 times)
- The flag of the People’s Republic of China and the Chinese Progressive flag (16 times)
- The transgender flag
- The LGBT Pride Flag (7 times)
- The national flag of Cuba (11 times)
- The flag of Turkey (10 times)
- The Unity Flag, which is the pride flag with a space dedicated to black homosexuals and transgender people
- A flag commemorating Juneteenth (2 times)
- The flag of Venezuela (9 times)
- The flag of the United Nations (9 times)
Shurtleff sued the city, arguing that since any private organization could apply to fly a flag, the city, in singling his flag out, violated his freedom of speech. Shurtleff received legal aid from Liberty Counsel, an advocacy group for religious liberty.
State and federal judges ruled in favor of the city four times, on the basis that the flag would constitute government speech and violate the Establishment Clause, which prevents the government from “establishing” a religion.
Shurtleff and Liberty Counsel appealed each time. The case eventually reached the U.S. Supreme Court.
On May 2, 2022, the federal Supreme Court, in a 9-0 decision, ruled in favor of Shurtleff that the city of Boston “did not make the raising and flying of private groups’ flags a form of government speech. That means, in turn, that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint ‘abridg[ed]’ their ‘freedom of speech.’ ”
Stephen Breyer, one of the court’s three liberals, wrote the decision.
The American Civil Liberties Union and the Biden Administration lent support to Shurtleff, urging the court to overrule the lower court decisions.
In a friend-of-the-court brief filed on November 22, 2021, the American Civil Liberties Union argued that “The First Circuit not only misapplied the public-forum doctrine but also extended this court’s government-speech precedents beyond their appropriate reach.”
The United States Justice Department also filed an amicus brief in November 2021, saying that the ability to fly an alternate flag “is not government speech, but instead a forum for private speech.”
The Justice Department did issue a caveat, adding that in overturning the case, “the court should reaffirm that the First Amendment affords the city and other governments ample latitude to craft expressive programs — including programs involving contributions from private parties — without relinquishing their right to control the message or exclude other private speakers.”
Camp Constitution’s flag is slated to fly on Wednesday, August 3.
Boston, as of October 19, 2021, is no longer accepting applications from third parties to fly flags on Boston City Plaza.
In a recent email message to NewBostonPost, Shurtleff said this decision by the city was neither his nor Liberty Counsel’s intent but that “we are very pleased” with the federal Supreme Court decision “and that our suit will be used to prevent religious viewpoint discrimination around the U.S.”
“As a Christian, I have to say that God’s Hand was in this from the beginning,” Shurtleff added.
On Monday, August 1, Liberty Counsel released a statement, saying that “the sole reason for the denial was that the application form referred to the flag as a “Christian” flag. Had the application used any word other than “Christian,” the City of Boston would have granted the application.”
Kathleen Lynch, a Republican state committeewoman, praised Shurtleff and Liberty Counsel, saying their work “shows that steadfast persistence in pursuit of justice and good cause is worth it.”
“Disallowing the raising of the Christian flag was a clearcut First Amendment violation and should never have been met with such resistance from Boston officials,” Lynch said in an email message to NewBostonPost. “I’m thrilled that the Supreme Court delivered a 9-0 ruling!”
The decision to deny Shurtleff’s request was made during former Mayor Marty Walsh’s administration.
The current mayor of Boston is Michelle Wu.
NewBostonPost sent an email to Wu’s press office requesting comment on Monday, August 1. A spokesman for Wu did not respond by deadline.
The Christian flag case is not the first time the U.S. Supreme Court has overruled the city of Boston on a matter of free speech.
In 1995, the U.S. Supreme Court ruled against the city of Boston in the case Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston. In that case, a pro-homosexuality advocacy group sought to march in the annual St. Patrick’s Day Parade in South Boston, organized by the South Boston Allied War Veterans. Parade organizers turned them down. The group sued. Massachusetts courts — including the state’s Supreme Judicial Court — ruled against the organizers, saying that they must accommodate the group on the grounds that the parade was a public accommodation.
The U.S. Supreme Court ruled in favor of the parade organizers, saying that freedom of speech includes the ability to exclude messages that parade organizers don’t want to send.
The decision was 9-0. The opinion was written by then-justice Ruth Bader Ginsburg.