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'Obvious and unconstitutional discrimination': Christian group asks SCOTUS to rule whether Boston can refuse to fly Christian flag

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A Christian organization whose request to have the Christian flag flown at Boston City Hall Plaza was denied by the city filed a petition this week asking the U.S. Supreme Court to rule whether the city can refuse their request.

The city's decision was upheld by both a federal district court judge and a three-judge circuit court panel.

What's the background?

Boston City Hall Plaza features three massive flagpoles. Two of those poles always fly the U.S. flag and the Massachusetts state flag. The city flag usually flies on the third pole, but citizens are permitted to petition City Hall to raise other flags temporarily, the Christian Post reported.

In 2017, a Christian group led by Harold Shurtleff called Camp Constitution asked to have the Christian flag flown during a Constitution Day and Citizenship Day event. The city rejected their request, claiming that flying the Christian flag would be akin to favoring a religion.

Camp Constitution filed suit in U.S federal court and pointed out that the city had flown the Turkish flag (which bears Islamic symbolism) multiple times and the Vatican flag (which has multiple religious symbols), as well as other flags promoting ideological stances, including the Communist Chinese flag, the transgender flag, and LGBT flags. Also, Boston's city flag bears the City Seal. The seal states "SICUT PATRIBUS, SIT DEUS NOBIS," which means "God be with us as he was with our fathers."

Nearly 300 different flags were permitted between 2005 and 2017, the suit said. The Christian flag was the only one the city rejected.

In February 2020, U.S. District Court Judge Denise Casper ruled against Shurtleff's group, saying that the flagpoles constituted "government speech," the Post said.

Shurtleff vowed to appeal the decision and take it to the Supreme Court if necessary.

That appeal was shot down by the First Circuit Court of Appeals in January. The three-judge panel ruled that the city is not required to treat the third flagpole as First Amendment-protected private speech.

SCOTUS petition

Liberty Counsel, a conservative legal group that fights for evangelical issues, filed the petition with the Supreme Court on Monday.

The petition points out that the city rejected only the Christian flag over a 12-year period, and claims that the rejection was based on the fact that the word "Christian" was used on the application form (emphasis in original):

The City of Boston designated its City Hall Flag Poles as one of several “public forums" for “all applicants," and encourages private groups to hold flag raising events at and on the Flag Poles “to foster diversity and build and strengthen connections among Boston's many communities." Over the course of twelve years, the City approved 284 such flag raisings by private organizations, with zero denials, allowing them to temporarily raise their flags on the City Hall Flag Poles for the limited duration of their events. But when Petitioners' Christian civic organization, Camp Constitution, applied to raise its flag during a flag raising event to celebrate the civic contributions of Boston's Christian community, the City denied the request expressly because Camp Constitution's proposed flag was called “Christian" on the application form but, other than a common Latin cross on the flag itself, there is nothing to identify the flag as a “Christian" flag.

The petition asserts that "the denial of Camp Constitution's flag raising request violated Camp Constitution's right to free speech under the First Amendment, as well as the Establishment Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment."

"Never has Boston censored any flag until the Camp Constitution's flag, which is white with a blue square in the upper corner and a red cross. The flag contains no writing," Liberty Counsel said in a statement about the petition. "Under oath, the city official testified the flag would have been approved if the application did not refer to it as a 'Christian flag.' The word 'Christian' on the application alone triggered the censorship. The official said he had never heard of a 'Christian flag' until Camp Constitution's application. This testimony showed that if Camp Constitution had not referred it the flag on the application with the word 'Christian,' it would not have been censored" (emphasis in original).

Liberty Counsel founder and chairman Mat Staver said the group was looking forward to the high court "acknowledging the city's obvious and unconstitutional discrimination."

"Censoring religious viewpoints in a public forum where secular viewpoints are permitted is unconstitutional and this must stop," Staver added.

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