Over the past 12 years there have been 284 flags—from LGBTQ rainbow flags, a Turkish flag with the Islamic star, to Communist China flags—raised on a public flagpole owned by the city of Boston.
But when a local civic organization proposed a Christian flag, officials from the city—known as the Cradle of Liberty—said “no”, making it the first time ever that a proposed flag was rejected for the pole.
The debate is now heading to the U.S. Supreme Court (SCOTUS) with some unlikely bedfellows in support of the Christian organization bringing the case to the nation’s highest court.
The ACLU is among more than 15 organizations including—The Congressional Prayer Caucus Foundation and the Foundation for Moral Law —that have filed briefs in support of Camp Constitution, a Massachusetts organization that promotes Judeo-Christianity and denounces abortion, critical race theory, homosexuality, and other ACLU-backed social issues.
Mathew Staver, attorney for the Liberties Counsel, which is representing Camp Constitution in the SCOTUS case, said the ACLU’s support confirms the argument that the Massachusetts court was wrong when it agreed with the city of Boston’s position that it had the right to censor the flag because the city-owned flagpole was considered a government speech forum and, therefore, exempt from First Amendment protection.
“This is government speech masquerading as religious bigotry,” Staver told the Epoch Times.
“We have the United States, we have 11 states, and we have the ACLU of Massachusetts on our side ... it really confirms our point ... that it’s very clear what happened here is a violation of First Amendment.”
The U.S. Department of Justice, along with 11 other states, also filed a brief in support of raising the Camp Constitution flag. The states are Kentucky, Arizona, Arkansas, Georgia, Louisiana, Missouri, Montana, Nebraska, South Carolina, Tennessee, Utah, and West Virginia.
The matter started when Gregory Rooney, commissioner of Boston’s property management division, rejected the group’s proposal to raise the flag on the city-owned pole because they referred to it as a “Christian” flag on its application.
In an email to Hal Shurtleff, director of Camp Constitution explaining his rejection of the group’s flag, Rooney wrote that the “City of Boston maintains a policy, and practice, of respectfully refraining from flying non-secular flags on the City Hall flagpoles.”
“This policy, and practice, is consistent with well-established First Amendment jurisprudence prohibiting a local government from “respecting an establishment of religion,” Rooney added.
Neither Rooney, nor the attorneys handling the case for the city, returned requests by The Epoch Times for comments on the SCOTUS case.
Rooney’s decision was supported by the First Circuit Court of Massachusetts, which ruled Rooney was in his right to deny the flag, because Boston’s flag-raising program is government speech and exempt from free speech protection.
In its brief opposing the Supreme Court case, the city also argued that Rooney was in his right to deny a non-secular flag because he had “sole and complete discretion” over what flags would be approved for the city-owned pole.
Staver said he believes the city may have walked themselves into a giant legal quagmire by taking the position that the flag-pole is government speech.
In Massachusetts it is against the law for any government to display on government property the flag of another country. Boston, according to its own records, has displayed the flag of dozens of foreign countries—including China, Vietnam, Tibet, Cuba, Poland, and the Philippines.
Among the 284 flags the city approved in the past included The Turkish flag, which depict the star and crescent of the Islamic Ottoman Empire.
Boston’s own flag, noted Staver, includes a Latin inscription that translates into “God be with us as he was with our fathers.”
It also has an uncanny resemblance, Staver pointed out, to Boston’s long cherished Bunker Hill flag. Both feature a red cross with a white and blue background.
The only significant difference between the two is that the Bunker HIll flag includes a small pine tree next to the cross, which ironically was chosen to represent liberty to the colonists.
Both the ACLU, of Massachusetts, and the Justice Department, argued the city’s flag-raising program is not a forum for government speech, but instead a forum for private speech.
The ACLU denounced the city’s decision to, it said, “designate a flagpole as a public forum for a wide range of private speakers and messages, and then deny access to an otherwise eligible private speaker based on the speaker’s viewpoint.”
“The Constitution squarely forbids that approach,” it argued.
The DOJ stated, in its brief, that the case is a matter of national concern because federal agencies like the National Parks Services often provide government venues to private demonstrations and events.
It expressed concern that the Massachusetts court decision, if not overturned, could even have negative ramifications on such government programs as the competition run by the United States Postal Service that adopts postage stamps designed by private citizens.
Oral arguments in the cases are scheduled to be heard by the U.S. Supreme Court on Jan. 18.
Liberty Counsel plans to hold a vigil, and a rally, the day before in Boston.
