The city of Boston may legally deny a request to fly a Christian flag on a City Hall flagpole while accepting other cultural groups' requests to fly their flags, a federal judge ruled on Wednesday.
According to U.S. District Court Judge Denise J. Casper, the the city does not have to fly a Christian flag with a cross on it from a municipal flagpole on the same day in which the Christian civic group Camp Constitution hosts its Constitution Day and Citizenship Day events at City Hall Plaza.
The city had previously denied the request by the organization's director, Harold Shurtleff, last year on grounds that an unwritten policy doesn't permit the flying of nonsecular flags from the municipal flagpole.
The city would permit the group to hold its event and even fly a Christian flag, but just not from the city's flagpole. It would also let the group fly a nonsecular flag from the flagpole if it wanted.
Casper ruled that the city had not "unlawfully restricted Plaintiffs' ability to speak publicly."
"The City has only denied Plaintiffs permission to compel the City to endorse a particular religion by raising the Christian flag," the judge wrote in her 18-page ruling. "Given the range of options available to Plaintiffs for their event on City-owned property, the Court concludes Plaintiffs are unlikely to suffer irreparable harm without an injunction."
Shurtleff and his attorneys at the Liberty Counsel had argued in a lawsuit that his constitutional rights had been violated by the city's denial. The lawsuit against the city claimed that the city regularly flies flags that contain "explicit religious" language and symbols.
One of those flags, he argued, is the city's own flag. The Boston city flag contains the Latin phrase for "God be with us as he was with our fathers."
The lawsuit also points out how the city allows the Bunker Hill Flag to be raised to commemorate the Revolutionary War Battle of Bunker Hill on Bunker Hill Day each June 17.
The Bunker Hill Flag contains a red St. George's Cross and a small green pine tree against a white square in the upper left corner of the mostly blue flag.
Additionally, the lawsuit details the religious significance of the Portuguese flag that has been allowed to fly in the past on the City Hall Plaza flagpole.
"Defendants' unwritten policy that prohibits 'non-secular' flags in the City's designated public forum of the City Hall Flagpoles is unconstitutional in that it grants unbridled discretion to government officials to determine what is 'non-secular' and therefore to impermissibly ban expressive displays on the basis of content, viewpoint, or other unconstitutional grounds," the lawsuit contends.
Casper argued in her ruling that the flags that Shurtleff mentioned all pass the "Lemon test" because their "primary effort is not to advance or inhibit religion."
"The names of the flags alone are enough to reveal their primary purposes," she wrote. "The Christian flag primarily represents a specific religion, while the other cited flags represent a sovereign nation, a city government and a group committed to remembering a military victory."
The lawsuit argues that the city's unwritten policy preventing the flying of nonsecular flags constitutes "an unconstitutional prior restraint on speech."
"Today's ruling disregards the evidence that the city of Boston treats its flagpole as a public forum for all applicants except when it comes to a religious viewpoint," Roger Gannam, Liberty Counsel assistant vice president of legal affairs, said in a statement. "The Constitution does not allow the city to treat Camp Constitution and other Christian organizations differently from all others who are allowed to raise their flags for important events."
Courthouse News Service reports that Liberty Counsel vowed in a statement to appeal the ruling.
"The District Court acknowledged the exclusion of the flag was content-based censorship and that the city historically allowed a wide array of private speech, but the judge denied the preliminary injunction," the statement reads. "And, despite the fact that the city's policy refers to the flagpole as a 'public forum,' the opinion makes no mention of this critical fact."