Liberty Counsel Files Opening Brief at SCOTUS in Religious Viewpoint Case

Nov 15, 2021

WASHINGTON, D.C. – Today, Liberty Counsel filed its opening brief at the U.S. Supreme Court on behalf of Camp Constitution regarding Boston’s censorship of the Christian viewpoint. Boston must now file its response, and Liberty Counsel will file its reply brief thereafter. Liberty Counsel will present oral argument at the High Court in January with a decision expected by June 2022. This case will set national precedent regarding the issue of government versus private speech. 

Liberty Counsel filed a lawsuit on behalf of Boston resident Hal Shurtleff and his Christian civic organization, Camp Constitution, arguing that the city of Boston violated the First Amendment by censoring a private flag in a public forum merely because the application form referred to the flag as a “Christian flag.” Boston censored the religious viewpoint of Camp Constitution’s flag, which was to be raised for about an hour during the week of September 17 in observance of Constitution Day and Citizenship Day, while supporters gathered around the flagpole. The flag was part of the ceremony to honor the Constitution and recognize the contributions of Judeo-Christian heritage and the Christian history of the Founders and the communities in Boston and the Commonwealth of Massachusetts.

For the 12 years preceding Camp Constitution’s request, from June 2005 through June 2017, Boston approved 284 flag-raising events with no record of a denial. The city of Boston expressly created a public forum for private speakers to temporarily raise a flag on one of its poles. The city’s policy stated that one of the flag poles was as a “public forum” open to “all applicants,” and the city encouraged private individuals and groups to use the public forum to foster diversity and to recognize the various communities of Boston and Massachusetts. Yet, city officials censored the flag because it controlled the flagpoles, and it was government, not private speech. The lower court and the court of appeals ruled twice in favor of Boston.

Boston never censored any flag until Camp Constitution’s flag, which is white with a blue square and a red cross in the upper left corner. The flag contains no writing. 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. Therefore, his testimony revealed that if Camp Constitution had not referred to the flag on the application with the word “Christian,” it would not have been censored.

Other flags raised on the city’s flagpole include the Turkish flag (which depicts the Islamic star and crescent) and the Portuguese flag (which uses religious imagery). City officials have also never denied the “messages” communicated by the “Chinese Progressive Association,” the rainbow flag of Boston Pride, and a “transgender” pink and blue flag. The flags of private community groups include Albania, Brazil, Ethiopia, Italy, Panama, Peru, Portugal, Puerto Rico, and Mexico, as well as of Communist China and Cuba. No flag was ever denied until the city denied the flag of Camp Constitution.

The First Circuit Court of Appeals sided with the city of Boston finding that the flags were government speech. The Court wrongly accepted the city’s argument that the Establishment Clause justified its censorship. However, (1) the application form designates the flagpole as a “public forum” open for private speech; (2) the city never censored a flag in the 12 years prior to Camp Constitution’s application; (3) the city approved 39 flags (averaging over three per month) in the year prior to Camp Constitution’s  application; and (4) the flags of the foreign countries could not be government speech because under state law, it is a crime to raise the flag of a foreign country on city property.

Liberty Counsel’s Founder and Chairman Mat Staver said, “Liberty Counsel looks forward to presenting this nationally important case to the Supreme Court. It is indisputable that Boston denied the private flag raising solely because the application contained the word ‘Christian’ before the word ‘flag.’ It was this single word that resulted in the first censorship of a private flag raising application after 12 years with no denials. Censoring religious viewpoints in a public forum where secular viewpoints are permitted is unconstitutional. This case will have a national impact. Religious viewpoints must not be excluded from the marketplace.”

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