Following years of controversy and First Amendment litigation that ultimately wound its way to the nation’s highest court, a flag bearing a red Christian cross is slated to fly outside Boston City Hall later this week.
Wednesday’s flag-raising will take place three months after the Supreme Court unanimously ruled that the City of Boston violated the First Amendment rights of Camp Constitution, a Christian group, when city authorities refused to fly the banner outside City Hall in 2017.
In a ruling written by the since-retired justice Stephen Breyer, the high court said that Boston was wrong to deny the group, run by West Roxbury resident Harold Shurtleff, a permit to raise a white banner with a red Christian cross in connection with Constitution Day on Sept. 17, the date the US Constitution was signed in Philadelphia in 1787.
The legal organization Liberty Counsel, which represented Shurtleff in the litigation, said in a Monday press release that the flag will be raised on one of the public flagpoles on City Hall Plaza at 11 a.m. on Wednesday.
Mayor Michelle Wu’s office confirmed Monday the flag-raising ceremony was scheduled for Wednesday, but did not immediately offer further comment.
Between 2005 and 2017, according to the Supreme Court, the city approved 284 requests to fly flags outside City Hall from various countries, causes, businesses, and organizations. The only request it denied was Shurtleff’s proposal to fly the flag with the red cross to commemorate Constitution Day.
“We conclude that, on balance, Boston did not make the raising and flying of private groups’ flags a form of government speech,” Breyer wrote in his decision, issued in early May. “That means, in turn, that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint” abridged their freedom of speech.
The high court ruled that if the city had expressly endorsed the message printed on the flag, it would have qualified as government speech, meaning the city could accept or deny requests as it chose.
“The First Amendment’s Free Speech Clause does not prevent the government from declining to express a view,” Breyer wrote. “That must be true for government to work. Boston could not easily congratulate the Red Sox on a victory were the city powerless to decline to simultaneously transmit the views of disappointed Yankees fans.”
But the city blocked Shurtleff for no other reason than the religious message his flag carried, violating his free speech rights, Breyer wrote.
“While the historical practice of flag-flying at government buildings favors Boston, the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech — though nothing prevents Boston from changing its policies going forward,” Breyer wrote.
At the time of the decision, Wu’s office said it would develop policies for flag displays. City Hall typically flies three flags — for the United States, the Commonwealth of Massachusetts, and the city of Boston. The city’s flag is the one replaced during ceremonial flag-raisings.
Earlier this year, Shurtleff’s lawyer, Mathew D. Staver, the founder of Liberty Counsel, said the city’s position was so legally flawed it forged consensus between the Supreme Court’s conservative and liberal wings.
“Those kinds of decisions when you have unanimous decision are very rare,” he said. “There is a clear message from the Supreme Court that Boston’s censorship was unconstitutional ... that Boston crossed the line. They had no defense.”
The American Civil Liberties Union and the Biden administration had filed briefs supporting Camp Constitution in the case.
According to its Monday press release, representatives of Liberty Counsel, including Staver, will partake in the flag-raising ceremony at City Hall Wednesday.
The nonprofit Liberty Counsel is not without its own controversy, having been designated by the Southern Poverty Law Center as an extremist group that advocates “for anti-LGBT discrimination under the guise of religious liberty.”
“The Counsel bills itself as a nonprofit litigation, education, and policy organization that provides legal counsel and pro bono assistance in cases dealing with religious liberty, ‘the sanctity of human life,’ and the family,” according to the center’s description of the Liberty Counsel.
The center said Liberty Counsel has worked “to attempt to ensure that Christians can continue to engage in anti-LGBT discrimination in places of business under the guise of ‘religious liberty.’ ”
On Monday, Staver firmly rejected the center’s depiction of his organization, saying his group is not anti-LGBT. The Southern Poverty Law Center, he countered, is a discredited organization with its own set of problems. He said his group does not engage in extremist litigation, noting that they won the Boston flag Supreme Court case by a 9-0 vote.
“That’s not extremist,” he said.
In the aftermath of the Supreme Court’s decision, the Salem-based Satanic Temple also applied to fly its flag at City Hall Plaza.
Earlier this year, Lucien Greaves, a co-founder and spokesman for that organization, said in a statement, “It’s important to us to fly our flag where public forums allow flags of religious expression because religious liberty is dependent upon pluralism and government viewpoint neutrality.”
In 2019, the Satanic Temple in Salem announced that it had been officially recognized as a church by the Internal Revenue Service.
John R. Ellement of Globe staff contributed to this report.
Danny McDonald can be reached at firstname.lastname@example.org. Follow him on Twitter @Danny__McDonald.