BOSTON — A federal judge appointed to the bench by then-President Barack Obama has ruled in favor of the City of Boston after it was again sued over its rejection of a group’s application to fly the Christian flag outside City Hall during an event celebrating the religious history of the city and the contributions made by Christians.

Judge Denise Casper concluded that the flag — being raised at City Hall and adjacent to government emblems — would constitute, and be considered by the public as, government speech. The City is therefore permitted to control the message being expressed, she stated.

“It is not only that the flagpole on which Shurtleff’s Christian flag would be flying is on the steps of City Hall, but also that this ‘third-party flag would keep company with the United States flag and the flag of the Commonwealth of Massachusetts, two powerful governmental symbols,'” Casper wrote.

“That a keen observer might also observe that this third-party flag was flying on the pole ordinarily reserved for the flag of the City of Boston for a time would be even greater cause to attribute such speech to the City,” she opined. “By any measure of identity of the speech being that of the City or, alternatively, by any reasonable observer standard, the Christian flag waving on the City’s flagpole would be readily attributed to the City.”

Casper also noted that while the City of Boston has flown many other flags — those representing other countries and one for homosexual pride — it doesn’t fly religious flags at all, and therefore is not in violation of the Constitution’s Equal Protection clause.

“The City’s desire not to have its speech co-opted to promote a religious message cannot be seen as an improper inhibition of religion, when its primary reason for denying the application was to avoid the risk of violating the Establishment Clause by appearing to make ‘a government effort to favor a particular religious sect,'” she wrote.

“Rooney had never considered a religious flag prior to Plaintiffs’ application,” Casper outlined. “Rooney also does not recognize any ‘goal or purpose of the City … by excluding religious flags, except ‘concern for the so-called separation of Church and State or the Constitution’s Establishment Clause.’”

As previously reported, Camp Constitution sought to host an event in September 2017 in front of Boston City Hall, which would include short speeches by local pastors outlining the religious history of the city. September 17 is recognized as “Constitution Day and Citizenship Day” by federal statute, and citizens have been approved to fly flags during their events on numerous occasions.

However, when director Hal Shurtleff applied to fly the Christian flag on the pole through the duration of the event, his request was denied. Gregory Rooney, the commissioner of the Property Management Department, advised in writing that “[t]he City of Boston maintains a policy and practice of respectfully refraining from flying non-secular flags on the city hall flagpoles.”

He said that the City’s policy was based on the First Amendment’s “establishment of religion” clause, and outlined that he would consider a request to fly a non-religious flag, which Shurtleff declined.

According to the Camp Constitution website, the group exists “to enhance understanding of our Judeo-Christian moral heritage, our American heritage of courage and ingenuity, including the genius of our United States Constitution, and the application of free enterprise, which together gave our nation an unprecedented history of growth and prosperity, making us the envy of the world.”

Camp Constitution consequently obtained legal representation, which wrote to the City to contend that the denial was unconstitutional. It soon also filed suit, noting that other flags that were approved to be flown include the rainbow flag for homosexual Pride Month, as well as a blue, pink and white flag to recognize those who identify as transgender.

“Proud to fly the #TransFlag over Boston City Hall for the 1st time in MA history — a sign that everyone is welcome,” Mayor Marty Walsh tweeted in 2016.

A federal judge ruled against Camp Constitution in August 2018, as did an appeals court, and Shurtleff refiled the legal challenge.

“[T]he City cannot contend (nor has it) that Boston endorses the religion of Islam when it allows a Turkish flag on the City Hall flag poles (as it has done at least thirteen times), displaying the overtly and readily identifiable Islamic star and crescent of the Ottoman Empire, just as it did not endorse the Catholic Church when it allowed the Vatican flag to be raised on a City-owned flag pole,” its legal challenge argued, addressing the “government speech” aspect of the matter.

But on Tuesday, Judge Casper likewise ruled in favor of the City, stating, “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,” she wrote.

“That is, the denial of Camp Constitution’s application to fly the Christian flag on City Hall Plaza is not a departure from the City’s usual practice, rather the application of its practice and policy, given that it, unlike any other application, sought to fly a
religious flag.”

Read the ruling in full here.

Liberty Counsel, which is representing Shurtleff in court, expressed disappointment in the ruling on Wednesday, advising that it has already filed a notice of appeal. The organization believes that it is wrong to deny expressions of religion via a temporary flag-raising during a third-party event.

“The City of Boston’s open censorship continues against Camp Constitution’s Christian viewpoint. There is a crucial difference between government endorsement of religion and private speech, which government is bound to respect,” it said in a statement. “Censoring religious viewpoints in a public forum where secular viewpoints are permitted is unconstitutional.”

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