HAROLD SHURTLEFF, and CAMP CONSTITUTION, a public charitable trust, Plaintiffs, Appellants,
CITY OF BOSTON, and GREGORY T. ROONEY, in his official capacity as Commissioner of the City of Boston Property Management Division, Defendants, Appellees.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Denise J. Casper, U.S. District Judge]
D. Staver, with whom Roger K. Gannam, Horatio G. Mihet,
Daniel J. Schmid, and Liberty Counsel were on brief, for
Eidsmoe, Foundation for Moral Law, on brief for Foundation
for Moral Law, amicus curiae.
M. Ortner, Deborah J. La Fetra, and Pacific Legal Foundation,
on brief for Pacific Legal Foundation, amicus curiae.
S. Arcangeli, Assistant Corporation Counsel, City of Boston
Law Department, with whom Eugene L. O'Flaherty,
Corporation Counsel, was on brief, for appellees.
Richard B. Katskee, Carmen N. Green, Patrick Grubel,
Americans United for Separation of Church and State, Jeffrey
I. Pasek, Cozen O'Connor, Steven M. Freeman, David L.
Barkey, Amy E. Feinman, Anti-Defamation League, Amrith Kaur,
Cindy Nesbit and Sikh Coalition, on brief for Religious and
Civil-Rights Organizations, amici curiae.
Torruella, Selya, and Lynch, Circuit Judges.
TORRUELLA, CIRCUIT JUDGE.
appeal arises from the denial of a preliminary injunction
that would have required the City of Boston
("City") to temporarily raise a "Christian
flag" on a government-owned flagpole in front of its
City Hall. Plaintiff-appellant Harold Shurtleff is the
director of Camp Constitution, a volunteer association (and
also a plaintiff-appellant here) established in 2009 to
"enhance understanding of the country's
Judeo-Christian moral heritage, the American heritage of
courage and ingenuity, [and] the genius of the United States
Constitution," among other things. To commemorate
Constitution and Citizenship Day in September 2017,
Shurtleff, in his role as director of Camp Constitution,
organized an event to be held at the plaza in front of City
Hall. Shurtleff alleges he intended this event to be a
celebration of the Christian community's civic and social
contributions to the City and the Commonwealth of
Massachusetts, as well as of Christian support for religious
tolerance, the rule of law, and the United States
Constitution. Shurtleff sought a permit from the City to
raise a Christian flag on one of the City Hall Plaza flagpoles
during the proposed celebration. That flag would have been
raised next to poles flying the United States and
Massachusetts flags and in place of the City of Boston flag,
normally flown there.
City denied Shurtleff's flag-raising request, but
otherwise allowed him and Camp Constitution to host their
event at City Hall Plaza. Shurtleff and Camp Constitution
filed suit almost a year later, raising Free Speech,
Establishment Clause, and Equal Protection claims, and
seeking a preliminary injunction to prevent the City from
denying them a permit to raise the flag. The district court
denied the injunction and we now affirm.
Hall Plaza is at the entrance of Boston's City Hall. A
trio of eighty-three-foot tall poles that the City owns and
controls stands in the Plaza. Two of the poles usually fly
the United States and Massachusetts flags. At issue here is
the third pole, which displays the City's flag except
when temporarily replaced by another flag upon the request of
a third-party person or organization. Requests to replace the
City's flag with another flag are often accompanied by a
proposed third-party event to take place at a City-owned
venue, such as the Plaza. In the past, the pole in dispute
has displayed country flags (according to the complaint,
those of Albania, Brazil, Cuba, Ethiopia, Italy, Mexico,
Panama, the People's Republic of China, Peru, Portugal,
and also that of the territory of Puerto Rico) as well as the
flag of the Chinese Progressive Association, the LGBT rainbow
flag, the transgender rights flag, the Juneteenth flag
commemorating the end of slavery, and that of the Bunker Hill
these third-party flags contain what Shurtleff alleges is
religious symbolism. For instance, the Portuguese flag
contains "dots inside the blue shields represent[ing]
the five wounds of Christ when crucified" and
"thirty dots that represents [sic] the coins Judas
received for having betrayed Christ." The Bunker Hill
Flag contains a red St. George's cross. And the City flag
itself includes the Boston seal's Latin inscription,
which translates to "God be with us as he was with our
fathers." But nothing in the record indicates that the
City has ever allowed the flag of any religion to be raised
on the flagpole at issue.
parties must apply to the City for a permit before they can
hold an event and/or raise a flag at the Plaza. The City has
published guidelines for permit applicants on its website.
According to the guidelines, permits may be denied for
several reasons, including that the applicant plans to host
illegal activities on City property or if the proposed event
poses a danger to public health and safety. Applications may
also be denied if they do not comply with other relevant
permit requirements, ordinances, or regulations. The Office
of Property and Construction Management leads the application
review process and is charged with ensuring that all
applications meet City guidelines. And the Commissioner of
Property Management himself reviews flag-raising applications
for the City Hall Plaza poles to ensure that they are
"consistent with the City's message, policies, and
practices." There is no written policy regarding which
flags may be raised on the City Hall poles.
28, 2017, Shurtleff emailed the City requesting a permit to
"raise the Christian Flag on City Hall Plaza."
Shurtleff proposed several dates in September 2017 for the
flag raising and explained that Camp Constitution would
sponsor the event, which was also to include "short
speeches by some local clergy focusing on Boston's
history." Shurtleff's email to the City also
included a photo of a Christian flag to be raised, which has
a white field and a red Latin cross inside a blue canton. On
September 5, 2017, Shurtleff received an email response from
the City denying his request to raise the flag. The
City's response did not offer a reason for the denial.
Shurtleff emailed the City the next day to inquire about the
"official reason" for denying his application. Two
days later, on September 8, Shurtleff received an email from
Gregory T. Rooney, the City's Commissioner of Property
Management, explaining that his request was denied because
"[t]he City of Boston maintains a policy and practice of
respectfully refraining from flying non-secular flags on the
City Hall flagpoles." Rooney's email explained that
such a "policy and practice is consistent with [both]
well-established First Amendment jurisprudence . . . [and]
with [the] City's legal authority to choose how a limited
government resource, like the City Hall flagpoles, is
used." Before signing off, Rooney informed Shurtleff
that the "City would be willing to consider a request to
fly a non-religious flag, should your organization elect to
offer one." Shurtleff's plan to host an event at
City Hall Plaza, however, was allowed to go forward.
September 13, 2017, Shurtleff submitted a renewed event and
flag-raising application to the City, asking to use City Hall
Plaza and its flagpoles for the "Camp Constitution
Christian Flag Raising." Shurtleff's event
description explained that the "Christian flag is an
important symbol of our country's Judeo-Christian
heritage" and that the aim of the flag raising was to
celebrate "our Nation's heritage and the civic
accomplishments and social contributions of the Christian
community to the Commonwealth of Massachusetts, religious
tolerance, the Rule of Law, and the U.S. Constitution."
On September 14, Shurtleff's counsel sent a letter to
Boston Mayor Martin Walsh -- with copy to other City
officials -- that enclosed Shurtleff's September 13
application to celebrate a "Christian Flag
Raising." This letter requested that the City approve
Shurtleff's flag-raising application on or before
September 27, ...