Boston has created a number of public forums on city property for all comers to express their opinions, including a flagpole by city hall.
Flags there have honored a Portuguese-American festival, and one with five blue dots symbolized the “five wounds of Christ when crucified.” Also, private groups have flown flags from Brazil, Puerto Rico, Portugal, Ethiopia, China and Cuba.
A pride flag, a pink transgender flag and POW flags also have been flown.
But when a Christian organization asked to fly a Christian flag – the red cross on blue field in the corner of a white banner – its request was rejected because it’s too religious.
Harold Shurtleff and his Camp Constitution filed a lawsuit against the city and now is asking the 1st U.S. Circuit Court of Appeals to review his case.
Liberty Counsel, which is representing him, argued in a brief that the city routinely gives other civic and cultural organizations the freedom to raise their flags on the city hall flagpoles.
The city’s application policy refers to the flagpoles as a public forum.
It was Judge Denise Casper who ruled the city has the right to allow other flags, including those with religious elements, but can single out the Christian flag for exclusion.
The city’s written permit guidelines, however, promise the public “to accommodate all applicants seeking to take advantage of the city of Boston’s public forums,” referring to the flag pole as a “public forum.”
Shurtleff and his Camp Constitution asked the city in 2017 for a permit to raise the Christian flag on Boston City Hall flagpoles. The objective was to commemorate Constitution Day, Sept. 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.
But using what Liberty Counsel described as “a secret, unwritten and unconstitutional ‘policy’ of refusing religious flags,” the city rejected the request.
Liberty Counsel said its assistant vice president of legal affairs, Roger Gannam, previously showed the trial court that the city’s denial and secret “policy” are unconstitutional because the permit guidelines promise “to accommodate all applicants seeking to take advantage of the city of Boston’s public forums.”
And the city admitted in court it makes decisions based on whether its officials like the “message.”
The brief contends the outcome of the case should be clear, because “viewpoint-based restriction on private speech has never been upheld by the Supreme Court or any court.”
“It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys,” the filing said. “The city plainly has discriminated against Camp Constitution for its religious viewpoint.”
The Supreme Court already has found the “guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse.”
The city’s invitation to “all applicants” should be understood as exactly that, the filing says.
Liberty Counsel founder Mat Staver argued the First Amendment “protects the religious expression of all, and it prohibits the open hostility to religious viewpoints.”
“The Massachusetts Constitution recognizes that ‘the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality,’ and the Boston City Flag, flying on the same flagpoles denied to Camp Constitution, includes the Latin inscription, ‘God be with us as he was with our fathers,'” he said.
“The city’s censoring of religious viewpoints is not only unconstitutional, but also violates the historical and deeply held values of Boston, the Commonwealth, and the country.”