In a major ruling on free speech and religion, a city that has flown hundreds of flags supporting other causes was allowed to rebuff a Christian one.
BOSTON (CN) — Boston can refuse a citizen’s request to fly a Christian flag over City Hall even though it has allowed hundreds of other people to fly flags supporting everything from Chinese immigration to Juneteenth to gay pride, the First Circuit ruled Friday.
This doesn’t violate the plaintiff’s right to free speech nor does it discriminate against religion, the court said.
Boston is “entitled to select the views that it wants to express,” U.S. Circuit Judge Bruce Selya wrote for a three-judge panel.
And the refusal to fly the flag “simply cannot be construed to suggest the disparagement of the plaintiffs’ religion,” the 86-year-old Reagan appointee added.
The case involves the three 83-foot-tall flagpoles outside City Hall. One always flies the U.S. flag and one always flies the state flag; the third usually flies the city flag but citizens can petition to temporarily raise another flag.
Between 2005 and 2017, the city approved each of the 284 requests it received to fly other flags. Then a man named Howard Shurtleff proposed flying a Christian flag — specifically a flag of a red Latin cross — for a ceremony to mark the signing of the U.S. Constitution on Sept. 17, 1787.
Speakers would promote racial reconciliation, and “the contributions Boston’s Christian community has made to our city’s cultural diversity” would be recognized.
The city said no, and Shurtleff appealed to the First Circuit after his lawsuit misfired.
For Selya, the key question in the case was whether the flagpoles are a public forum. If they are, then Shurtleff has a right to free speech there, and the city can’t discriminate against him. But if they’re not, then the city has a right to choose what messages it wants to send or not send.
The court said the flagpoles represent the government’s speech, not the public’s speech, because a casual observer seeing the flags would assume that the city intended whatever message they convey.
“The sky-high City Hall display of three flags flying in close proximity communicates the symbolic unity of the three flags. It therefore strains credulity to believe that an observer would partition such a coordinated three-flag display … into a series of separate yet simultaneous messages (two that the government endorses and another as to which the government disclaims any relation),” the 42-page opinion states.
“Although the plaintiffs might perhaps make the case that a lone Christian flag, nowhere near City Hall, would be seen as devoid of any connection to a government entity, a City Hall display that places such a flag next to the flag of the United States and the flag of the commonwealth of Massachusetts communicates a far different message.”
Selya went on to say that the city wasn’t discriminating against religion and in fact by rejecting any religious flags it was avoiding the establishment of religion.
Flying a Christian flag “could be deemed to constitute a religious statement on the city’s part,” Selya said.
And the city wasn’t discriminating between religions because all 284 previous flag requests were for flags of a foreign country, a civic organization, or a secular cause such as Juneteenth or gay rights.
The court cited two Supreme Court cases, one from 2009 in which the high court said that a city didn’t have to accept a monument in a public park proposed by the quasi-religious group Summum just because it had allowed other privately funded monuments, and one from 2015 in which it allowed the state of Texas to reject a specialty license plate with a Confederate flag.
In both cases the court said the government was the one speaking, not Summum or the people who would drive around with the license plate.
And the fact that a flag-raising is temporary, unlike a monument or a license plate, made no difference, the First Circuit said.
U.S. Circuit Court Judges Sandra Lynch and Kermit Lipez, both of whom were appointed by President Clinton, concurred with Selya.