Flags at Boston City Hall Are ‘Government Speech,’ City Argues in Suit Over Christian Flag

Printed from: https://newbostonpost.com/2019/02/07/flags-at-boston-city-hall-are-government-speech-city-argues-in-suit-over-christian-flag/

The operator of a conservative camp is asking a federal judge to order the city of Boston to fly the Christian flag from a flagpole at City Hall.

Harold “Hal” Shurtleff, co-founder of Camp Constitution, headquartered in West Roxbury, has sued the city in federal court. A hearing on the city’s motion for summary judgment to throw out the case took place Thursday afternoon.

The Christian flag is mostly white with a red cross on a blue field in the upper left corner. It was designed in the early 1900s to represent Christians. Several Protestant denominations use the flag.

Shurtleff asked the city in July 2017 to fly the flag for one hour on one of several dates in September to celebrate the anniversary of the signing of the U.S. Constitution in September 1787. After several follow-ups, the city denied the request September 8, 2017, citing the separation of church and state.

In July 2018 he filed a lawsuit in U.S. District Court in Boston seeking a permanent injunction that would force the city to fly the flag.

On Thursday a lawyer for the city told a judge that city officials have a right to decide which flags should fly and which flags shouldn’t.

“Flags are government speech,” said David J. Zaures, representing the City of Boston and the city’s commissioner of property management, Gregory Rooney.

Zuares stated that at issue was “form analysis,” and that “constitutionality does not apply at this time.” The language of the application, he said, allows flags that represent events at specific locations, such as City Hall Plaza and Faneuil Hall, among others. Furthermore, he said, a ruling in favor of the plaintiff “would rob the city of its essential purpose of the flagpole:  to unite people.”

A lawyer representing Shurtleff said to make its case the city would have to provide evidence of how it decides which flags it flies, which he said means the lawsuit should go forward to discovery.

“It’s a factual determination,” said Roger Gannam of Liberty Counsel, of Florida, which has taken up the defense of Shurtleff pro bono. “The city would have to show that flags are government speech, period.”

Liberty Counsel describes itself, in part, as a Christian litigation ministry. The organization frequently represents people who believe their religious freedom has been violated.

In a statement about the Christian flag case, Liberty Counsel pointed out that numerous private organizations have raised flags at Boston City Hall, including those celebrating Juneteenth, the Chinese Progressive Association, transgenderism, and many other examples.

“We are only here on our allegations,” said Gannam. “The city has allowed non-secular flags in the past … What is the policy? The purpose is not evident.”

U.S. District Court Judge Denise J. Casper said she expects to rule on the motion for summary judgment next month.

“I am focused on the issue of whether there are matters that need to be brought up through discovery,” the judge said during the hearing, which took place Thursday, February 7 at John Joseph Moakley United States Courthouse in South Boston.

No matter which side wins, an appeal is likely.

For his part, Shurtleff is in it for the long haul. “They’re willing to take it all the way to the Supreme Court,” he said in an interview, referring to Liberty Counsel. “We’re Camp Constitution, we really felt we had no choice … so we’ll take it as long as it will go.”

“As long it takes!” chimed in Pastor Earl Wallace of Liberty Christian Fellowship, of New York, who is an instructor at Camp Constitution.

“You really cannot have a flag that represents all people,” Shurtleff said after the hearing, “unless you have a blank flag.”

Which, in the case of Shurtleff v. City of Boston, would indicate surrender.