Boston officials have agreed to pay $2.1 million in attorney’s fees and other costs to a Christian group that spearheaded the successful legal challenge to the city’s refusal to fly a flag bearing a red Christian cross outside City Hall in 2017.
In May, the US Supreme Court unanimously ruled that Boston had violated the First Amendment rights of Camp Constitution by denying the group 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.
Boston will pay $2.1 million to Liberty Counsel, which represented Camp Constitution and its founder, former West Roxbury resident Harold Shurtleff in the lawsuit. The camp’s flag was raised at City Hall Plaza in early August.
“We are pleased that after five years of litigation and a unanimous victory at the U.S. Supreme Court, we joined with Hal Shurtleff to finally let freedom fly in Boston, the Cradle of Liberty,” said Liberty Counsel Founder and Chairman Mat Staver in a press release Tuesday announcing the agreement with the city.
Staver continued, “The Christian flag case has established significant precedent, including the overturning of the 1971 ‘Lemon Test,’ which Justice Scalia once described as a ‘ghoul in a late night horror movie.’ The case of Shurtleff v. City of Boston finally buried this ghoul that haunted the First Amendment for 51 years.”
A spokesman for Boston Mayor Michelle Wu said in a statement, “Liberty Counsel is entitled to attorney fees by statute as the prevailing party in a civil rights case.”
“The City’s Law Department determined this number to be reasonable based on the detailed billing statements provided by Liberty Counsel and through their own analysis of rates charged by attorneys with similar experience in Boston as well as nationally among attorneys practicing in the Supreme Court,” the statement said. “Settlement at this time also allows the City to avoid the costs and uncertainty associated with further litigation in this case.”
Between 2005 and 2017, Boston approved 284 requests to fly flags outside City Hall from various countries, causes, businesses, and organizations, according to the Supreme Court. The only request it denied was Shurtleff’s proposal to fly the flag 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,” since-retired Justice Stephen Breyer wrote in his decision. “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.
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 court ruled.
City officials have since passed an ordinance to “clearly demarcate and codify that the city’s flagpoles are not intended to serve as a forum for free expression by the public.”
The American Civil Liberties Union and the Biden administration filed briefs supporting Camp Constitution in the case.