Boston agrees to pay $2.1M over Christian flag case

Supreme Court sided with civic group, which was finally able to fly banner with cross over city hall.

The City of Boston has agreed to pay more than $2.1 million in legal and other fees stemming from a case in which it denied a group permission to fly a Christian flag at City Hall.

A local civic group called Camp Constitution, which promotes an “understanding of our Judeo-Christian moral heritage,” asked to fly its flag over City Hall for a one-hour period during a Constitution Day event in 2017. Boston turned down the request, on the grounds that allowing the flag to fly would appear to be an endorsement of a particular religion. Camp Constitution’s flag features a cross.

The group and its co-founder Hal Shurtleff contended that their First Amendment right to free speech had been violated, and that they had been unfairly discriminated against since other groups had been allowed to fly their flags.

According to the decision from the 1st Circuit Court of Appeals, over a 12-year period, the City of Boston had permitted other groups to fly their flags at City Hall on at least 284 occasions. Those flags included the Turkish flag (which depicts the Islamic star and crescent) and the Portuguese flag (which includes shields arranged in the shape of a cross). Other flags included a gay pride rainbow flag, a pink and blue transgender flag, and flags from several foreign countries.

In May, the US Supreme Court ruled unanimously that the city violated the First Amendment when it refused to allow Camp Constitution to fly its flag over City Hall. Two lower courts had sided with the city before the case reached the high court.

The Supreme Court concluded that the city’s flag-raising program falls under the category of private speech rather than government speech. The city’s lack of involvement in the selection of any of the flags flown over city property was presented as evidence of the private nature of the exercise.

Justice Stephen Breyer wrote for the court, “We conclude that, on balance, Boston did not make the raising and flying of private groups’ flags a form of government speech. That means, in turn, that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint ‘abridg[ed]’ their ‘freedom of speech.’”

In his concurring opinion, Justice Brett Kavanaugh defended the right to religious speech under the First Amendment.

“Under the Constitution, a government may not treat religious persons, religious organizations or religious speech as second-class,” Kavanaugh wrote.

On Tuesday, Boston agreed to pay Liberty Counsel, the Christian legal organization that represented Camp Constitution, a sum of $2.125 million.

“Settlement at this time also allows the City to avoid the costs and uncertainty associated with further litigation in this case,” said a statement from the city.

“We are pleased that after five years of litigation and a unanimous victory at the U.S. Supreme Court, we joined with Hal Shurtleff to finally let freedom fly in Boston, the Cradle of Liberty,” Liberty Counsel founder and Chairman Mat Staver said in a statement.

The flag — which is white, with a red cross on a blue background in the upper left corner — finally flew for a couple hours outside City Hall on August 3. The city has since passed an ordinance that clarifies the rules for flag raisings.