Boston City Hall flag flap lands in federal court

A West Roxbury man has filed suit against the City of Boston, saying the city has violated his constitutional rights by denying his group the opportunity to fly a Christian flag with a cross on it in conjunction with an event on City Hall Plaza.

Harold Shurtleff, the 59-year-old director of Camp Constitution, a public charitable trust, said his group was denied a permit last year to raise a Christian flag on one of City Hall’s flag poles in connection with an event.

According to Shurtleff’s suit, the city denied the request because Boston “maintains a policy and practice of respectfully refraining from flying non-secular flags on City Hall flagpoles.”

In an e-mail to Shurtleff, Gregory Rooney, Boston’s property management commissioner, said “This policy and practice is consistent with well-established First Amendment jurisprudence prohibiting a local government ‘respecting an establishment of religion.’ ”

He added, “This policy and practice is also consistent with city’s legal authority to choose how a limited government resource, like the City Hall flagpoles, is used.”

Rooney indicated the city would be willing to consider a request from Shurtleff’s group to fly a non-religious flag.

The flag in question featured a red cross on a blue background bordered on three sides by a field of white.

Shurtleff wanted to raise the flag during an event to commemorate “the civic and social contributions of the Christian community to the City, the Commonwealth of Massachusetts, religious tolerance, the Rule of Law, and the US Constitution.”

In the complaint, Camp Constitution says its mission is to “enhance understanding of the country’s Judeo-Christian moral heritage, the American heritage of courage and ingenuity, the genius of the United States Constitution, and the application of free enterprise.”

The suit, which pits Shurtleff and the camp against the city and Rooney, was filed last month. It asserts that the city regularly flies or allows flags on City Hall flagpoles that contain explicit religious language and symbols.

The suit stated that the Boston city flag includes the city seal that features a Latin inscription which means “God be with us as he was with our fathers.” The city has allowed that banner to fly at City Hall, according to the suit, which was first reported by Universal Hub.

The suit said the city violated the freedom of speech rights of Shurtleff and Camp Constitution and asserted the city’s policies “are not neutral, but are invidious and hostile, towards religion.” It also argues the city’s actions are unconstitutional “because they treat displays of ‘non-secular’ flags differently than they treat displays of ‘secular’ flags.”

In court documents, attorneys for the city call for the dismissal of the complaint. They also want the city and Rooney to be awarded the costs of defending the suit.

The city’s attorneys argued in court documents that the city and Rooney’s actions “have at all times complied” with the First Amendment, and that they did not violate “any constitutional, statutory, or common law rights, privileges, or immunities of the Plaintiffs.”

Shurtleff is seeking preliminary and permanent injunctions that would prompt the city to approve a permit to display flags such as the Christian flag on the City Hall flagpoles. It also seeks damages and a declaratory judgment stating that the city’s policies regarding the flying of “non-secular” flags are legally invalid.

Reached by phone Wednesday night, Shurtleff said he would like to have an event at City Hall Plaza next month for “Constitution Day and Citizenship Day,” which commemorates the formation and signing of the US Constitution and would feature speakers discussing Boston’s history, among other topics. But he said that his group wants to raise the Christian flag, and if they aren’t allowed, they won’t go forward with the event. They have yet to apply for a permit, he said.

One of his attorneys, Roger Gannam said the hope is to have a ruling from a federal judge before Sept. 17.

At its core, the suit, said Gannam, is about a group’s “ability to raise its flag on the same terms as everyone else.”

“If they had simply allowed, no one would ever have even noticed, I’m pretty sure,” he said.