A federal appeals court today upheld a judge's decision not to force Boston to let a right-wing activist from West Roxbury fly an explicitly Christian flag from one of the three flagpoles outside City Hall while his suit over the issue remains open.
The ruling by the US Court of Appeals for the First Circuit in Boston could come in handy for city officials should they be pressed by organizers of an alleged "straight pride" parade and rally in August to be allowed to fly a flag from one of the poles.
Hal Shurtleff, a former Bircher who runs a summer camp aimed at molding young "Patriots" who are fully down with our Judeo-Christian heritage and free enterprise, sued the city after it approved his plan for an event on City Hall Plaza but rejected his request to fly his flag from one of the flagpoles.
Last August, US District Court Judge Denise Casper rejected Shurtleff's request for an injunction to force the city to run his flag up the flagpole, saying his suit was unlikely to be successful, in part because, unlike City Hall Plaza itself, where the city has long allowed pretty much anybody to hold an event, the flagpoles were an example of "government speech" the city uses to express itself.
Also, she rejected arguments by Shurtleff and his Florida lawyers that the ban infringed on his First Amendment right to freedom of religion, saying that, in fact, the city was upholding the Establishment clause by not allowing any explicitly religious flags to fly in front of City Hall.
In its ruling today, the appeals court agreed with Casper on all points, and amplified some of them. For example, Shurtleff argued the city had, too, allowed religious flags to fly on one of the poles, giving as an example the Portuguese flag, which he said had symbolism for both Christ's wounds and the 30 pieces of silver used to betray him.
But a flag that references religion by using religious symbols in part of its field is not itself a religious flag. And as appellants conceded at oral argument and is also evident from the record, there is no evidence that the City has ever raised the flag of any religion on the flagpole at issue.
The court said that because the flagpole is not a "public forum," where anybody can speak, Shurtleff's flag could even make bystanders think the city was endorsing his particular religious views:
We have little doubt that the third-party flag's message would be attributed to the City.
If the observer arrived in time, she could well see a City employee lower the Boston flag and replace it with a third party's flag. The replacement flag would fly eighty-three feet into the sky only steps away from the entrance to Boston's seat of government, City Hall. That height would make the flag visible from far away, even from places that have no view of what is happening on the plaza below. And the third-party flag would keep company with the United States flag and the flag of the Commonwealth of Massachusetts, two powerful governmental symbols. "In this context, there is little chance that observers will fail to appreciate the identity of the speaker" as being the City. Summum, 555 U.S. at 471.
The court continued it did not think much of Shurtleff's First Amendment argument:
Next, Shurtleff claims that the City acts in contravention of the Establishment Clause "by allowing the numerous and varied [secular] flags of a broad spectrum of private organizations while specifically excluding Camp Constitution's 'non-secular' flag." But the "secular" flags -- really, flags of secular organizations or causes -- the City has allowed to fly instead of the City flag do not show that the City has espoused a preference for non-religion over religion. And the record contains no evidence that would suggest otherwise. Thus, in light of the current record, we agree with the district court that the likelihood of success of Shurtleff's Establishment Clause claim is dim.