In Shurtleff v. City of Boston, (1st Cir., Jan. 22, 2021), the U.S. 1st Circuit Court of Appeals, in a case coming before it for a second time, again upheld the city of Boston's refusal to allow an organization to raise its "Christian flag" on one of the City Hall Plaza flag poles at an event that would also feature short speeches by local clergy. The court said in part:
Because the City engages in government speech when it raises a third-party flag on the third flagpole at City Hall, that speech is not circumscribed by the Free Speech Clause.... The City is therefore "entitled" to "select the views that it wants to express."...
The court also rejected plaintiffs' Establishment Clause claim, saying in part:
The exclusion of religious entities from a public program, without more, does not violate the Establishment Clause. See Carson ex rel. O.C. v. Makin, 979 F.3d 21, 49 (1st Cir. 2020). Nor is proof of such exclusion evidence of hostility towards religion....
We add, moreover, that while the Establishment Clause may not require a secular-flag policy, the City "may act upon [its] legitimate concerns about excessive entanglement with religion" in administering its flag-raising program....
Our government-speech finding bolsters the conclusion that the City would be perceived to endorse the messages conveyed by the flags that it flies.
