Harold Shurtleff says he was not seeking to generate a legal controversy when he filed a request with Boston officials in 2017 to fly a Christian flag at City Hall.
“I had no sense this was going to be a big thing,” says Shurtleff, a conservative activist and director of Camp Constitution, a New Hampshire-based civics camp for young people and adults.
The case of Shurtleff v. City of Boston, to be argued on Jan. 18, has become a bit of a big thing. It’s the latest test of religious expression to be heard by a U.S. Supreme Court that has been increasingly deferential in recent years to legal claims by religious conservatives.
“The justices seem more interested now when something involves religion than they would be in any other context,” says Richard B. Katskee, the vice president and legal director of Americans United for Separation of Church and State, who co-wrote a brief supporting the city of Boston.
284 approved flags, first denial
Shurtleff and Camp Constitution wanted to raise what they call “the Christian flag,” an 1897 design embraced by some Protestant churches that features a red Latin cross against a blue square in the corner of a field of white. Their idea was to celebrate Boston’s Judeo-Christian heritage as well as Constitution Day on Sept. 17.
“We would have had a few speakers and about 30 to 40 people for a short ceremony,” he says. “I don’t think anyone would have viewed this as the city of Boston adopting Christianity as its official religion.”
Over 12 years preceding Shurtleff’s application, Boston had approved the short-term raising of 284 third-party flags on one of the three flagpoles at its 1968 municipal building. The United States and Massachusetts flags fly on the first two flagpoles, respectively, while Boston’s city flag flies on the third, but it is lowered when a third-party flag is raised.
The approved flags included those of countries whose immigrants help make up the city, such as Ireland, Portugal, China, Panama, Vietnam and Haiti; as well as flags representing or commemorating LGBTQ pride, Juneteenth and the Revolutionary War Battle of Bunker Hill.
“We commemorate flags from many countries and communities at Boston City Hall Plaza during the year,” the city’s website said of the flag-raising program. “Our goal is to foster diversity and build and strengthen connections among Boston’s many communities.”
Boston officials rejected the application from Shurtleff and Camp Constitution—the first on record in 12 years of applications. The then-commissioner of the city’s property management department expressed concerns about the display of the Christian flag violating the First Amendment’s prohibition against government establishment of religion.
“The city of Boston maintains a policy and practice of respectfully refraining from flying nonsecular flags on the City Hall flagpoles,” Gregory T. Rooney, the commissioner, wrote to Shurtleff. Besides the establishment clause concern, he wrote, “This policy and practice is also consistent with city’s legal authority to choose how a limited government resource, like the City Hall flagpoles, is used.”
In 2018, the city adopted a more formalized policy for the program barring from the City Hall flagpole any flag “deemed to be inappropriate or offensive in nature or those supporting discrimination, prejudice, or religious movements.”
‘Much broader than one particular flag’
Shurtleff and Camp Constitution sued the city, primarily on free speech grounds.
“I wanted to fight it,” says Shurtleff, a 63-year-old Boston native who traces his ancestry back to the Mayflower and worked as an organizer for the conservative John Birch Society before starting Camp Constitution. “I thought it was really wrong of the city to say all these other organizations can raise their flags, but you cannot because it is a Christian flag.”
Shurtleff lost in federal district court and in the 1st U.S. Circuit Court of Appeals, in Boston, ruling that the flags raised on the City Hall flagpole were government speech.
An observer would attribute the message of a third-party flag to the city because it was displayed at “the entrance to Boston’s seat of government” and was alongside the U.S. and state flags, both “powerful governmental symbols,” the appeals court said in 2021.
Shurtleff and the camp, represented by Orlando, Florida-based Liberty Counsel, appealed to the Supreme Court, arguing that the display of third-party flags at Boston City Hall are not government speech but part of a designated public forum for private speech.
“This case is much broader than a particular flag,” says Mathew D. Staver, Liberty Counsel’s founder and chairman. “This case is about the government’s ability to restrict religious viewpoints and whether the government can play fast and loose by creating a public forum, but then when it encounters a viewpoint it doesn’t like, arguing that it is government speech.”
Douglas Hallward-Driemeier, a Ropes & Gray partner who will argue for Boston, agrees with Staver on at least one thing: The case comes down to whether the city had created a public forum or whether the flag program represents government speech.
“A flagpole has always communicated the message of the property owner,” Hallward-Driemeier says. “Here, the government’s own flagpole is standing in front of City Hall.”
By usually flying the U.S., state and city flags on the three poles, he says, Boston is sending a message about the government’s permanence. Even when the city flies a third-party flag, “the public understands that the city is flying it in front of its own house, if you will, and it is still communicating its own message,” he says.
The city points out that the City Hall plaza has several areas designated a public forum for speech, including “at” the base of the three flagpoles. “Over time, private groups have held a full range of events, including numerous religious events, on the Plaza,” the city says in its brief.
Boston suspended the flag-raising program pending the outcome of the case. The only other flag denied on record was from a group seeking to promote “straight pride.”
“The city can’t run the risk that that it would have to fly flags with a message that is antithetical to the city’s own,” Hallward-Driemeier says.
A survey of flag-flying practices
Although it is hardly central to the case, court papers veer into a long-running debate about the 1968 Boston City Hall, built in Brutalist style of Modern architecture that includes a sweeping but often barren public plaza. At least one recent Boston mayor criticized the building and plaza as cold and unfriendly and proposed demolishing them. Shurtleff calls the complex a “neo-Stalinist, Brutalist monstrosity.” The plaza is currently under major renovation.
Still, Shurtleff sought to join dozens of other groups that have held ceremonial flag-raisings by proposing to raise the Christian flag designed in 1897 by Charles Overton and adopted in 1942 by the predecessor body of the National Council of Churches of Christ in America.
Shurtleff says he was forthright on his application for the flag-raising to call it a Christian flag rather than the flag of Camp Constitution, which raised a red flag, so to speak, among city officials. He notes that Boston’s own flag, which flies on the third flagpole most of the time, depicts the city seal with the phrase, in Latin, “God be with us as he was with our fathers.”
Other flags approved for the program, including some national flags and the Bunker Hill flag, also have religious imagery. But the city argues that those flags were approved as symbols of historical significance or nationhood, not for their religious symbols.
Shurtleff and Camp Constitution have the support of the Biden administration, which argues that the city had created a public forum and engaged in viewpoint discrimination when it denied the application to fly the Christian flag.
But the court “should re-affirm that the First Amendment affords the city and other governments ample latitude to craft expressive programs—including programs involving contributions from private parties—without relinquishing their right to control the message or exclude other private speakers,” U.S. Solicitor General Elizabeth B. Prelogar says in a brief.
The American Civil Liberties Union also filed an amicus brief in support of Shurtleff, arguing among other things that there was no establishment clause concern because the city had designated its third flagpole as a forum for temporary displays by private parties.
Boston is supported by nine states, churches and other civil rights groups. A brief by local government groups included results of a survey of flag-flying practices showing that most agencies across the country either do not fly third-party flags or maintain close control and treat them as part of the government’s own speech.
The survey “demonstrates that Boston has flown an unusually large number of third-party flags,” the brief says.
Katskee, who helped write a brief on Boston’s side by the National Council of Churches of Christ in America, notes that the new case is the opposite of several recent cases in which local governments have sought to maintain long-standing religious monuments.
“This is about whether Boston can be forced to display a religious symbol,” he says. “This is another instance in which people are asking the court to say the government has no discretion and must adopt or fund a religious practice or program even when it would rather be neutral. That would be shocking if it wasn’t part and parcel of the direction in which some of the justices seem to be going.”