“The misconception that the United States is a Christian nation is dangerous and should not be furthered by allowing a Christian flag.”
Later this month, the Supreme Court of the United States will hear arguments in Shurtleff v. Boston, a case that has made its way up the flagpole all the way from Boston district court. The case actually involves flagpoles, specifically those in front of Boston City Hall, where all sorts of community, international, and advocacy flags are flown beside flags for state, city, and country.
What you won’t see waving around Government Center from one of the city’s poles, however, are religious flags of any kind. For obvious reasons. Still, that hasn’t stopped some Christian curmudgeons from casting stones into the spokes of government via virtue lawsuits. As the United States First Court of Appeals in Boston found in January 2020:
The case has its genesis in a suit filed by plaintiffs Harold Shurtleff and Camp Constitution in which they complained that the defendants — the City of Boston and Gregory T. Rooney, in his official capacity as Commissioner of Boston’s Property Management Department (collectively, the City) — trampled their constitutional rights by refusing to fly a pennant, openly acknowledged by the plaintiffs to be a “Christian Flag,” from a flagpole at Boston City Hall. The district court granted summary judgment in favor of the City. See Shurtleff v. City of Bos. (Shurtleff III), No. 18-CV-11417, 2020 WL 555248, at *6 (D. Mass. Feb. 4, 2020). Concluding, as we do, that the government speech doctrine bars the maintenance of the plaintiffs’ free speech claims and that their remaining claims under the Establishment Clause and the Equal Protection Clause lack bite, we affirm.
Regarding this latest leg of the suit, here’s more information from the American Humanist Association (AHA), which signed an amicus brief filed in the US Supreme Court “in support of the City of Boston’s refusal to fly the Christian flag at city hall in Shurtleff v. Boston.”
“Our Bill of Rights leads with the separation of church and state for a reason: our freedom and democracy depend on it,” AHA Legal Director and Senior Counsel Monica Miller said. “The City of Boston’s refusal to fly the Christian flag over city hall in a manner that would connote a strong alliance between church and state was therefore mandated, not only by the First Amendment, but democracy itself. Tragically, we can all but guarantee the Supreme Court will rule in favor of the Christian plaintiffs—the question is, at what cost?”
More from the amicus brief:
Boston’s refusal to fly the Christian Flag from a City Hall flagpole comports with basic Establishment Clause principles. A central goal of the Clause, grounded in the Framers’ pre-Revolutionary experience, was to discourage government from fomenting division between faiths. The Clause therefore precludes government from preferring one religion over another. But unavoidably, flying the Christian Flag from a municipal flagpole that towers over City Hall—alongside other city flagpoles that fly the United States and Massachusetts flags—would have just that effect.
The AHA further explained, “The brief submitted by Americans United for Separation of Church and State and joined by the AHA, along with numerous other secular and religious groups, argues that the flags in front of Boston’s city hall represent government speech rather than private speech. Government speech is subject to the restrictions of the Establishment Clause.”
“In these circumstances, Boston is not constitutionally obligated to vary its practice so as to display divisive religious images that will graphically associate the city government with the beliefs of particular faiths, in a manner that will alienate many residents and inevitably generate feelings of exclusion and resentment,” the brief reads.
“The misconception that the United States is a Christian nation is dangerous and should not be furthered by allowing a Christian flag to fly at a city hall,” AHA Executive Director Nadya Dutchin added. “We urge the Supreme Court to protect the rights of Bostonians who would feel ostracized by the flying of a religious flag that does not represent them.”
Arguments in Shurtleff v. Boston will be heard Jan. 18, 2022.