Christian in flag fight gets support from U.S., states, even ACLU

A Christian who brought a fight to the city of Boston for arbitrarily banning the Christian flag from a public forum flagpole at city hall there is getting support from the U.S., from a long list of states, and even the ACLU.

Liberty Counsel has brought the fight on behalf of Boston resident Hal Shurtleff and his Camp Constitution to the Supreme Court.

The issue is that the city designated one flagpole a public forum and let a long list of special interest groups fly their flags for special occasions.

In fact, hundreds of groups did so.

But when Shurtleff requested permission to fly the Christian flag there, the city refused.

Liberty Counsel, representing Shurtleff, this week confirmed that so far the U.S. has filed a brief in support of the case, as have 11 states and the American Civil Liberties Union of Massachusetts.

Liberty Counsel filed its opening brief only days earlier, and arguments are scheduled Jan. 18.

The brief from the U.S. urges the court to rule in favor of Camp Constitution.

“Under this court’s precedents and based on the record in this case, the city’s flag-raising program is not government speech, but instead a forum for private speech. The court should therefore reverse the decision. … In so doing, however, 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,” it says.

The brief from 11 states charges, “This is a case about religious discrimination masquerading as government speech. … Here, the religious discrimination hides behind the banner of government speech. And so this case raises different questions than those before it. But the root problem is the same. The court should reverse the decision below.”

It continues, “It would be a mistake to resolve the free-speech question presented here without a broader understanding of the root problem—a growing hostility toward religion across the nation.”

Even the ACLU, which often leans left in its perspective, said, “the city generally opened its flagpole to flag displays by private speakers. Having done so, it was bound by the same principles that apply in traditional public forums, including the prohibition on viewpoint discrimination. Thus, the fact that the city excluded a speaker with a religious viewpoint does not (as the First Circuit reasoned) show that the city did not open a public forum at all. Instead, it shows the city denied access to a public forum on the basis of viewpoint, which is constitutionally verboten.”

There’s even the charge, from a Jones Day law firm brief, that accuses Boston of religious animus.

“The city’s attempts to justify its behavior go nowhere, and indeed only illustrate the city’s religious hostility. For example, the city argues that treating the flag pole as a public forum would lead to a ‘cacophony’ of conflicting viewpoints. But it never expressed any such concerns before when it displayed a bewildering array of flags representing a medley of controversial political and social causes, which shared nothing in common other than the lack of any Christian message. Only when a single Christian note was played did the melody begin to sound ‘cacophonous’ to the city. That is animus, pure and simple.”

Lower courts had sided with Boston in its censorship program.

Liberty Counsel founder Mat Staver said: “This important First Amendment case will set national precedent regarding the issue of government versus private speech. It is indisputable that Boston denied the private flag raising solely because the application used the word ‘Christian’ before the word ‘flag.’ After 12 years with no denials, this one word led to the first censorship of a private flag raising application. The City of Boston’s reaction to the word ‘Christian’ reveals the religious hostility behind the decision to deny the application. Of all places, this censorship of a Christian viewpoint occurred in Boston—the cradle of liberty. Religious viewpoints must not be excluded from the public square.”

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