Boston doesn’t have to raise a Christian flag in place of the city’s flag at City Hall Plaza, a judge ruled Tuesday in a federal suit brought by a religious group claiming discrimination by the city’s initial rejection.
An order by U.S. District Court Judge Denise Casper denied a summary judgment for Harold Shurtleff and his Camp Constitution organization, who filed a federal suit in 2018 after the city denied their request to fly the Christian flag on a City Hall flagpole in 2017.
Camp Constitution describes itself as a Christian group that seeks to “enhance understanding of our Judeo-Christian moral heritage, our American heritage of courage and ingenuity, including the genius of our United States Constitution,” according to their website.
An attorney for Boston argued in case documents the city is allowed to have control over the City Hall Plaza flagpoles because they’re considered government speech. Shurtleff argued the city’s 284 flag raisings between 2005 and 2017 were evidence the city had not previously denied a request, while Boston rebutted that most of the flags were of other countries and some civic symbols, such as the LGBT flag.
The City Hall Plaza flagpoles fly the United States and Massachusetts flags, a Prisoner of War/Missing in Action flag and the city of Boston’s flag on the third pole, which is replaced by requested flags.
“There are no additional facts in the record that would suggest any improper preference for non-religion over religion or selective treatment of any person or group based on religion,” Casper wrote.
Camp Constitution’s initial request to raise the flag was denied by then-head of the Property Management Department, Gregory Rooney, who referenced a policy refraining the city from flying nonsecular flags, according to the initial complaint.
“The use of City Hall flag poles is at the City’s sole and complete discretion,” a statement issued from Mayor Marty Walsh’s office said. “The City maintains that its flag poles are a forum for government speech. As such, the City maintains selectivity and control over the messages conveyed by the flags flown on our flag poles.
“We have never raised a religious flag on City Hall Plaza. Everything is either a national flag raising (the vast majority) or flag raisings dealing with issues of social or public policy, or historical significance.
“Camp Constitution’s request to fly the ‘Christian’ flag (as it is labeled by the organization), which bears the Latin cross, can properly be denied because the flying of flags on the City Hall flagpoles is government speech, not private speech. More importantly, the request should be denied, because, aside from the government speech/discretionary issue, the flag sends an overt religious message, and could reasonably be construed to be an endorsement of Christianity by the City, which would be a violation of the Establishment Clause.”
Shurtleff told the Herald “We are appealing the decision and will take it all the way to the Supreme Court if necessary.”
Boston later created “Flag Raising Rules,” which Casper wrote did not signify an attempt to shut out Camp Constitution’s request.
“The City did not alter its procedures for review of flag applications because of Camp Constitution’s request, instead Camp Constitution’s request presented a novel issue for the City’s consideration, which the City considered consistent with its practice and policy,” Casper wrote.
The only other flag the city refused to raise was a “straight pride” flag before a rowdy parade last year.
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