Shurtleff v. City of Bos.
337 F. Supp. 3d 66
D.D.C.2018Background
- Boston owns three equal-height flagpoles at City Hall Plaza; one regularly flies U.S./POW-MIA, another the Massachusetts flag, and the third typically the City flag or flags requested by third parties.
- Plaintiffs Shurtleff and Camp Constitution requested permission (Sept. 2017) to raise the Christian flag on the third pole for a Constitution Day event; the City denied the request, explaining it refrains from flying non-secular (religious) flags on the City Hall flagpoles.
- The City has permitted various non-City flags in the past (national flags, pride and Juneteenth flags), but asserts an unwritten practice of excluding religious flags to avoid Establishment Clause problems.
- Plaintiffs sued seeking a preliminary injunction compelling the City to fly the Christian flag and asserted First Amendment free speech and Establishment Clause claims, plus equal protection and parallel Massachusetts constitutional claims.
- The court held an evidentiary record on the motion and denied the preliminary injunction, concluding plaintiffs had not shown a likelihood of success on the merits or irreparable harm, and that the balance of equities and public interest weighed against relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether flags on City Hall pole are government or private speech | Shurtleff: flag-raising is private speech in a limited public forum; exclusion of the Christian flag is unconstitutional | City: flag selection/display is government speech and not subject to Free Speech Clause constraints | Flags constitute government speech; even if not, City’s restriction on non-secular flags is viewpoint neutral and reasonable in a limited public forum |
| Whether denying Christian flag violates Free Speech | Shurtleff: denial is content/viewpoint discrimination preventing religious expression | City: it selects messages it will convey and may refuse religious flags to avoid endorsing religion | Plaintiffs unlikely to prevail; government-speech doctrine controls; forum restriction (if applicable) is permissible |
| Whether City’s refusal violates the Establishment Clause if compelled to fly the Christian flag | Shurtleff: flying the flag serves secular purposes and is permissible | City: raising a religious flag beside national/state flags risks governmental endorsement of religion | Court: compelling the City to fly the Christian flag could violate the Establishment Clause; plaintiffs not likely to succeed on this claim |
| Whether City’s policy violates Equal Protection / vagueness | Shurtleff: policy is vague and discriminatorily applied (points to other flags containing religious references) | City: policy (though unwritten) validly excludes religion as a subject; other flags cited serve secular primary purposes and are not similarly situated | Court: plaintiffs failed to show a Fourteenth Amendment violation; examples cited are not similarly situated and policy is not unconstitutionally vague in this context |
Key Cases Cited
- Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (monuments/markers on government property can constitute government speech not subject to Free Speech Clause)
- Walker v. Tex. Div., Sons of Confederate Veterans, 135 S. Ct. 2239 (2015) (state-controlled specialty license plates are government speech; speaker may not force state to carry private messages)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (in a limited public forum government may not engage in viewpoint discrimination; exclusion must be reasonable in light of forum purpose)
- Lemon v. Kurtzman, 403 U.S. 602 (1971) (established the three-part test for Establishment Clause challenges)
- Lynch v. Donnelly, 465 U.S. 668 (1984) (endorsement test for assessing whether government action endorses religion)
- Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) (distinguishes public forum types and governs speech restrictions in limited/nonpublic fora)