A federal judge today rejected a West Roxbury right winger's demand that the city be forced to fly a flag with a prominent cross over an event he says he wants to hold on City Hall Plaza next month.
Hal Shurtleff and his Florida lawyers can continue the lawsuit against the city over the issue, but US District Court Judge Denise Casper's rejection of his request for a preliminary injunction means his case would not likely be heard until after the Sept. 17 "Constitution Day" event Shurtleff has said he wants to hold. Casper also wrote she was rejecting his demand because she felt his overall suit would be unlikely to survive at trial.
In his request for an injunction, Shurtleff, a former John Birch Society organizer, argued Boston was violating his First Amendment rights to get his Christian flag on one of the three flagpoles on City Hall Plaza.
Casper said no, the city wasn't. Just like people, a government entity has the right to express itself, and the flagpoles in question have always been for that purpose rather than a place where anybody can say whatever they want. The city has long had guidelines for people who want to fly a flag from one, she noted.
In contrast, City Hall Plaza itself is a "public forum" where the city cannot limit speech - and Casper noted that the city has told Shurtleff he could hold his event there and unfurl any flag he wanted, just not from a city flagpole.
Shurtleff argued that the city's rejection of his request was a violation of the First Amendment's Establishment Clause, which prohibits governments from promoting a particular religion. Casper wrote that, to the contrary, the city's decision to bar a flag to promote Shurtleff's version of Christianity was a perfect example of compliance with the clause.
[T]he Court concludes that compelling the City to display the Christian flag on the City flagpole, as Plaintiffs seek to do, may well violate the Establishment Clause.Certainly, an event to “raise the Christian flag” could serve some of Plaintiffs' cited secular purposes, such as the celebration of religious freedom in Boston and the contributions of Boston's Christian residents to the City. However, its primary purpose would be to convey government endorsement of a particular religion by displaying the Christian flag alongside that of the United States and the Commonwealth in front of City Hall. Blowing in the wind, these side-by-side flags could quite literally become entangled. If Plaintiffs were not seeking government endorsement, then Plaintiffs would presumably be content to raise their own flag on their own in the same location as has been suggested.
She added that if the city did allow Shurtleff to fly his flag, it would open itself up to lawsuits from people and groups who object to the apparent city seal of approval for his version of the Christian religion.
Casper also rejected Shurtleff's argument that Boston was being hypocritical and so violating his Fourteenth Amendment right to equal protection. Shurtleff noted that in the past, the city has allowed the flying of the flags of Portugal and the Bunker Hill Association, both of which have references to Christianity or God - not to mention the city's own flag, which features a Latin motto beseeching God for wisdom. Casper said the comparison is wrong:
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. Therefore, Plaintiffs are not similarly situated to the sponsors of the Portuguese, City of Boston and Bunker Hill Association flag events and have failed to make out a claim of differential treatment in violation of the Fourteenth Amendment.