One Man’s Quest to Uphold Freedom Results in Supreme Court Win

Aug 12, 2022

Camp Constitution co-founder Hal Shurtleff raised the Christian flag at Boston City Hall on Aug. 3, 2022. The flag-raising was both the material and symbolic culmination of a five-year legal battle that resulted in a unanimous decision by the Supreme Court in favor of Shurtleff and the Free Speech Clause of the First Amendment.

Represented by Liberty Counsel, a nonprofit religious liberties law firm, Shurtleff suffered two defeats in lower courts before winning his case at the Supreme Court on May 2, 2022.

Holding the position that flying the Christian flag would be a violation of separation of church and state, the City of Boston issued a rejection letter to Shurtleff on Sept. 8, 2017. The letter cited that the city “maintains a policy and practice of respectfully refraining from flying non-secular flags on the City Hall flagpoles” and that its policy and practice “is consistent with the well-established First Amendment jurisprudence prohibiting a local government from ‘respecting an establishment of religion.’” The letter went on to assert the City’s legal authority to choose “how a limited government resource, like the City Hall flagpoles, is used.”

Boston Got It Wrong

Boston obviously got it wrong — like 9-0 wrong — in the eyes of the Supreme Court. In this case, Boston practiced religious viewpoint censorship in a forum open to all speakers under the guise of separation of church and state.

Backstory shows that from 2005 to 2017, the city, which wanted to foster an environment that welcomed everyone, created a public forum for private speech open to all applicants at City Hall. Private speakers could temporarily raise a flag on one of the flagpoles during their event.

Streets, sidewalks and parks are considered traditional public forums for private speech and assembly. The government may also open other property or facilities for private speech and assembly. Such property can include library community rooms, public schools, bandshells, plazas, flagpoles and much more. When the government opens its property for private speech and assembly, the speech is private, not government speech, and the government may not discriminate against the viewpoint of the speaker.

Of 284 applications submitted to the City of Boston, 284 were approved — until Camp Constitution’s application came along. Boston denied permission solely because the flag was called “Christian” on the application.

“Boston tried to make this case about separation of church and state,” says Harry Mihet, vice president of legal affairs and chief litigation counsel. “The principle is simple: The city doesn’t have to open its flagpole to anyone, but if it does (and it certainly did here with 284 requests and 284 approvals), the city cannot pick and choose who gets to speak.

“When a government opens up its property on equal terms to everyone in the community, the government does not endorse the views expressed in that equally available and public square for all.”

After the Supreme Court announced it would take the case on September 30, 2021, 17 amicus briefs poured into SCOTUS in support of Shurtleff in Shurtleff v. City of Boston. From the United States of America to a coalition of 12 states to even the American Civil Liberties Union (ACLU), remarkably diverse groups stood in solidarity to preserve free speech in the public square.

“This [case] wasn’t about state endorsement of the church,” Mihet adds. “This was about people of faith having an equal voice and equal access to a government forum that had been opened up to the community at large.”

One Man’s Quest to Uphold Freedom

Behind the scenes, Shurtleff v. City of Boston also tells the story of one American’s quest to hold his government accountable. “When I got the rejection email back from the city in September 2017 and it said, ‘separation of church and state’ and ‘First Amendment,’ I said, ‘Nah, you got a wrong perspective on that,’” Shurtleff recalls. “I knew we had a case then and there.”

Liberty Counsel took the case the next day after getting a call from Shurtleff. According to Mat Staver, founder and chairman of Liberty Counsel, it was a case worth fighting for.

“What we see here is the classic hostility toward religion, religious free exercise and especially religious viewpoint,” Staver says. “We need to continue to fight for our freedom and fight for our constitutional liberties — fight to have the Constitution say what it means and interpret it according to its meaning rather than the whims of a particular judge.”

With Liberty Counsel by his side, Shurtleff’s convictions propelled him past two lower court losses and into a 9-0 SCOTUS victory.

“We have God-given rights under the Constitution,” Shurtleff says. “God gives us the rights; the Constitution protects those rights. If we’re not vigilant, we’re going to lose them. That’s my message to America.”

It’s a message that came full circle on Aug. 3, 2022. From 11 a.m. to noon, the two symbols at the epicenter of this free speech controversy of national consequence — the Christian flag and the City of Boston flagpole — came together to let freedom fly.

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