Appeals Court: Boston Does Not Have to Allow a Christian Flag Outside City Hall January 26, 2021

Appeals Court: Boston Does Not Have to Allow a Christian Flag Outside City Hall

The First Circuit Court of Appeals has ruled that the city of Boston was within its rights to reject the flying of a Christian flag outside City Hall Plaza.

Some background: Harold Shurtleff is the director and co-founder of Camp Constitution, a non-profit group that promotes the idea that we live in a “Christian nation.” (He’s wrong.) In 2017, Shurtleff applied for a permit to raise a Christian flag on a pole outside City Hall Plaza to commemorate “Constitution Day and Citizenship Day”… but the city of Boston rejected the request.

Shurtleff contended this was religious discrimination even if the same rules prohibited atheist flags from going up. He said there were plenty of other flags with religious symbols that the city put up, including the national flag for Portugal — which includes a religious symbol — during the city’s Portuguese-American festival. The city even acknowledged that significance on its website at the time. Plus, the city flag for Boston includes a Latin phrase that translates to “God be with us as he was with our fathers.”

Religion itself wasn’t the problem, he argued, so why weren’t they letting him hoist a Christian flag when he went through all the proper motions?

Officials told him non-secular flags were prohibited from using the city’s flagpole. They also implied that an explicitly Christian flag was different from a national or local flag with a religious symbol on it. Shurtleff wasn’t buying it, so he filed a lawsuit in 2018 claiming this was a violation of his constitutional rights.

He didn’t get very far with that one. That year, U.S. District Court Judge Denise J. Casper denied him a preliminary injunction. And last year, she officially rejected his challenge. In short, she said that Boston had every right to reject his Christian flag.

… There are no additional facts in the record that would suggest any improper preference for non-religion over religion or selective treatment of any person or group based on religion. The City did not alter its procedures for review of flag applications because of Camp Constitution’s request, instead Camp Constitution’s request presented a novel issue for the City’s consideration, which the City considered consistent with its practice and policy.

Wasn’t that hypocrisy given the other flags with religious symbols that were allowed to go up? Not at all, the judge said.

All of these flags, although they contained religious imagery, are secular flags of sovereign nations… Permitting such flags to be flown also allowed for the City’s purpose of “commemorate[ing] flags from many countries and communities” and is not similar to the Christian flag proposed to be flown by Shurtleff, which was a religious flag… The Court is not convinced that flags of countries or secular organizations and entities that contain religious references or imagery are the same as the Christian flag that Shurtleff sought to fly from the City’s flagpole, which nobody disputes is a non-secular flag.

Simply put, unless the city was allowing other religious or atheist groups to put up their own flags in promotion of their beliefs, Christians didn’t have a special right to do the same. And the city had good reason to say no to faith-based flags altogether.

Shurtleff then filed an appeal. Last summer, a coalition of 18 groups, including Americans United for Separation of Church and State and the American Humanist Association, urged the Court to uphold the earlier decision in an amicus brief. Their plea rests on two basic arguments: The original decision was consistent with our understanding of the Establishment Clause, and Boston’s current policy denying religious flags is good for religious freedom:

As our Nation becomes increasingly pluralistic, the need to uphold the separation between government and religion is more important than ever. Boston’s policy here not to display religious flags in front of City Hall respects the diverse faiths of all city residents, in keeping with the First Amendment and the fundamental freedoms that it safeguards. This Court should therefore reject any invitation to forsake our Nation’s “profound commitment to religious liberty”… and should instead respect the City’s decision to reaffirm the founding principles and essential protections for religious freedom that have served this country and all its people so well for so long.

The City of Boston is bound to respect the religious beliefs of all its citizens. By declining Shurtleff’s demand that it display a religious symbol, the City did just that: It properly refrained from aligning itself with any particular religion, thus remaining true to our national heritage and deep commitment to religious freedom.

In a statement, the American Humanist Association reaffirmed why this case was so important:

“Prominently displaying the Christian flag alongside the national and state flags, on quintessential government property no less, would constitute tacit governmental endorsement of Christianity in violation of the Establishment Clause,” AHA Legal Director and Senior Counsel Monica Miller proclaimed.

AHA Executive Director Roy Speckhardt observed: “Flying a Christian flag at Boston’s City Hall would reinforce the misleading belief that the United States is a Christian nation.”

Now an appellate court has ruled in support of church/state separation.

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.

“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.

The other two judges, both Clinton appointees, signed onto that decision.

The AHA welcomed the ruling while pointing out how the case never should’ve gotten this far at all:

“While this is a victory no doubt, the fact that a federal appeals court even had to entertain the question of whether a city can refuse a Christian flag is itself alarming,” AHA Legal Director and Senior Counsel Monica Miller opined. Miller explained, “The Christian right is using the guise of ‘religious freedom’ to eradicate separation of church and state and this case is but one example.” “We are grateful the First Circuit reached the only correct conclusion, but it is scary to think how this case would have ended in a different circuit or the Supreme Court.

AHA Executive Director Roy Speckhardt observed: “It is a relief to see that federal courts still respect the separation of church and state and understand the harm religious displays on government property can cause.”

As I’ve said before, there was just no reason to overturn the earlier decision. This wasn’t a complicated case. It didn’t involve the kinds of loopholes exploited by the Supreme Court in recent church/state cases. It was just an example of a Christian who believed his faith put him above the law.

There’s no persecution going on. A Muslim or atheist group attempted to do what he’s doing would also fail. The difference is that they know better than to try it. This guy’s just whining over nothing.

(via Religion Clause. Image via Shutterstock. Large portions of this article were published earlier)

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