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Christian flag in speech battle flies, briefly, over Boston

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BOSTON (AP) — The Christian flag that became the focus of a free speech legal battle that went all the way to the Supreme Court was raised — briefly — outside Boston City Hall on Wednesday to cheers and songs of praise.

The flag-raising took place about three months after the Supreme Court in a unanimous decision ruled the city discriminated against Harold Shurtleff and his Camp Constitution group because of his "religious viewpoint" when it refused permission for him to fly the banner on City Hall Plaza on Constitution Day 2017.

"We're so pleased for this day," Shurtleff, a Boston native, said at a ceremony to raise the white flag, which has a red cross on a blue background in the upper left corner.

A unanimous Supreme Court ruled Monday that Boston violated the free speech rights of a conservative activist when it refused his request to fly a Christian flag on a flagpole outside City Hall.Justice Stephen Breyer wrote for the court that the city discriminated against the activist, Harold Shurtleff, because of his religious viewpoint, even though it had routinely approved applications for the use of one of the three flagpoles outside City Hall that fly the U.S., Massachusetts and Boston flags.Occasionally, the city takes down its own pennant and temporarily hoists another flag.SEE MORE: Supreme Court To Decide On Legality Of Alabama Congressional MapsShurtleff and his Camp Constitution wanted to fly a white banner with a red cross on a blue background in the upper left corner, called the Christian flag, to mark Constitution Day, Sept. 17, in 2017.The city had approved 284 consecutive applications to fly flags, usually those of other nations, before it rejected Shurtleff's because it was a Christian flag. The city said he could fly a different banner, but Shurtleff refused, and lower courts upheld the city's decision.But the high court said the lower courts and the city were wrong. The case hinged on whether the flag-flying is an act of the government, in which case Boston can do whatever it wants, or private parties like Shurtleff, Breyer wrote.Finally, we look at the extent to which Boston actively controlled these flag raisings and shaped the messages the flags sent. The answer, it seems, is not at all. And that is the most salient feature of this case, Breyer wrote in an opinion that also riffed on the brutalist architectural style of Boston's City Hall and the Siena, Italy-inspired 7-acre plaza on which it sits.Breyer wrote that the citys lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speechthough nothing prevents Boston from changing its policies going forward.The city has said that in the event of a loss at the Supreme Court it probably will change its policy to take more control of what flags can fly.Additional reporting by The Associated Press.

"We have a great Constitution, and we have a wonderful First Amendment, but just like when it comes to muscles, if you don't use it, they get weak," he said. "When I got the rejection email from the city, and it said separation of church and state, I knew we had a case."

There are three flagpoles outside City Hall that fly the U.S., Massachusetts and Boston flags. The city flag is sometimes taken down and temporarily replaced with another.

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The city between 2005 and 2017 approved 284 consecutive applications to fly flags, with no denials before it rejected Shurtleff's proposal, according to Liberty Counsel, which represented Shurtleff.

The only reason it was denied was because the word "Christian" was on his application, and he was told to replace the word if he wanted approval, Mat Staver, Liberty Counsel's founder and chair, said Wednesday.

City Hall Plaza "is for the people to be able to represent their views and perspectives without government telling them that they can't," said Jonathan Alexandre, Liberty Counsel's senior counsel for government affairs. "And if they open it up to one group, they must open it up to every other group."

The flag was up for about two hours Wednesday before Camp Constitution took it down, both the city and Liberty Counsel confirmed.

The Supreme Court case revolved around whether the flag-raisings were an act of the government or private parties.

"Boston did not make the raising and flying of private groups' flags a form of government speech," the court wrote in the ruling. "That means, in turn, that Boston's refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint" curtailed their First Amendment free speech rights.

The city had no written policies or clear internal guidance about flag-raising, Liberty Counsel said.

That may soon change. Three City Councilors, with the support of Mayor Michelle Wu, filed an ordinance Tuesday to update the process for raising flags.

"Under the new process, a City Council resolution or mayoral proclamation will be required for a flag to be raised," they said in a statement. "The proposed ordinance will enable the city to continue to celebrate flag raisings while complying with the recent U.S. Supreme Court decision on the city's previous process, which clarified the affirmative role required of the city government in maintaining the flag pole as a site for expressing the city's values and ideals."

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