After five years of litigation and a unanimous U.S. Supreme Court ruling, the Christian flag finally flew on the Boston City Hall Plaza public forum flagpole yesterday as an enthusiastic crowd cheered to celebrate the first day free of unconstitutional viewpoint discrimination.
In Shurtleff v. City of Boston, Liberty Counsel represents Boston resident Hal Shurtleff and his Christian civic organization, Camp Constitution. Shurtleff and Camp Constitution first asked the city in 2017 for a permit to raise the Christian flag on the “public forum” Boston City Hall flagpole to commemorate Constitution Day and Citizenship Day (September 17) and the civic and cultural contributions of the Christian community to the city of Boston, the Commonwealth of Massachusetts, religious tolerance, the Rule of Law and the U.S. Constitution. For 12 years, from 2005 to 2017, Boston approved 284 flag raisings by private organizations with no denials on the flagpoles that it designated a “public forum.” However, the city official denied Camp Constitution’s application in 2017 to fly the Christian flag on Constitution Day.
Yesterday’s historic ceremony included Shurtleff and Liberty Counsel Founder and Chairman Mat Staver raising the Christian flag together on the flagpole in Boston City Hall Plaza. Speakers included Shurtleff, Staver, Liberty Counsel Vice President of Legal Affairs and Chief Litigation Counsel Harry Mihet, and Senior Counsel for Governmental Affairs Jonathan Alexandre.
During the ceremony Shurtleff said, “Back in 2017, we wanted to have a simple ceremony to commemorate the Constitution Day and Boston’s rich Christian history. The speakers we had planned for that event are here today. I want to thank you, a special thanks to Liberty Counsel, and I want to give the glory to God…We have a great Constitution, and we have a wonderful First Amendment. But just like when it comes to muscles, it you don’t use it, you get weak. When I got the rejection email from the city, and it said separation for church and state, I knew we had a case.”
Staver said, “For 12 years prior to 2017, and for five years from 2017 to 2022, up until August 3, your viewpoint was excluded from this flagpole public forum. Every viewpoint was permissible to go on this public forum flagpole except a Christian viewpoint. You were excluded for 12 years before this issue began. For 12 years there were 284 applications, not a single denial, virtually no review and the only reason why Camp Constitution’s request to fly this flag was denied was not because of the flag itself. It was Hal Shurtleff’s view of that flag. It was because of one word in the application––the word ‘Christian’ that preceded the word ‘flag.’ He was told by the city official that if he changed the name of the flag to a non-religious name on the application, that flag could have flown in 2017 if Hal would have lied and called it the Camp Constitution flag. This is not the Camp Constitution flag. It is the Christian flag.”
After Staver argued the case before the U.S. Supreme Court on January 18, 2022, the High Court ruled 9-0 on May 2 that the city of Boston violated the Constitution by censoring a private flag in a public forum open to “all applicants” merely because the application referred to it as a “Christian flag.” The High Court stated that it is not government speech, and because the government admitted it censored the flag because it was referred to as a Christian flag on the application, the censorship was viewpoint discrimination, and there is no Establishment Clause defense.
With Justice Breyer writing the opinion, the High Court wrote that “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.’”
In addition, the Court wrote, “Here, Boston concedes that it denied Shurtleff ’s request solely because the Christian flag he asked to raise ‘promot[ed] a specific religion.’ App. to Pet. for Cert. 155a (quoting Rooney deposition). Under our precedents, and in view of our government-speech holding here, that refusal discriminated based on religious viewpoint and violated the Free Speech Clause” (emphasis added).
During yesterday’s event, Staver also said, “When I argued this case on January 18, I realized that the city was in deep trouble when Justice Breyer and Justice Kagan asked the city attorney arguing the case ‘why did you not settle this case?’ I knew we had a big win.”
Mihet, who is originally from Romania, said yesterday, “Today is a great day for the city of Boston, for the Christian community in the city of Boston, for freedom itself and for the Constitution. The raising of this Christian flag today symbolizes the fact that the Christian community, the community of faith, across this whole country are not constitutional orphans. They are full heirs to the constitutional guarantees of freedom of speech and free exercise of religion along with every other American.”
“Having grown up in communist Romania, having witnessed a government that was determined to stamp out religious expression from the public square at all costs, my friends, we need to do everything and anything in our power to make sure that free speech and free exercise of religion always remains free and protected in this great land of ours,” said Mihet.
After the speakers concluded, Alexandre led the crowd in song with a powerful presentation of the “Battle Hymn of the Republic.”
The entire ceremony can be viewed here.