In Gordon v. City of Hamtramck, (6th Cir., Aug. 21, 2026), the U.S. 6th Circuit Court of Appeals rejected Free Speech, Establishment Clause and Equal Protection challenges to a city Ordinance that changed the rules on what flags could be flown from a group of 18 city-owned flag poles. The flag poles historically were maintained by the city's Human Relations Committee (HRC). Originally, the city would fly any flag a resident requested. After the HRC honored a resident's request to fly the Pride flag, City Council passed a Resolution limiting flags that could be flown to the American, Michigan, Hamtramck, and Prisoner of War flags, and the flags of nations representing Hamtramck’s international character. When two members of the HRC, in defiance of this Resolution, again flew the Pride flag, they were removed from the HRC and the HRC's authority over city flag poles was removed. The two HRC members sued. The court said in part:
Before Resolution 2023-82, we assume without deciding that the flagpoles conveyed private speech and that they were a designated public forum. But because we conclude that Resolution 2023-82 closed the flagpoles as a forum for private speech, we hold that the plaintiffs’ free-speech claim fails....
Gordon and Stackpoole ... altogether ignore Kennedy and do not attempt to grapple with its effects on Establishment Clause jurisprudence. Instead, they cite Lemon and its progeny for the proposition that legislation must have a secular purpose...
... [A]lthough Kennedy recognized the abrogation of “Lemon and its progeny,” ... it is unclear if it disturbed the Court’s pre-Lemon Establishment Clause case law that requires government action to possess a secular purpose....
Councilmember Choudhury’s statement, during an hours-long hearing, that “we have to respect the religious,” ... fails to demonstrate that Resolution 2023-82’s primary purpose was to advance religion....
The court also concluded that plaintiffs had forfeited their Equal Protection claim by not developing the claim on appeal.
Judge Thapar filed a concurring opinion, saying in part:
The Resolution doesn’t resemble any founding-era hallmarks of established religion. The City hasn’t exerted any control over religious belief or exercise by limiting the content of its flag display. Even assuming religion motivated certain City Councilmembers to pass the ordinance, the City hasn’t compelled its residents to proclaim any religious creed or adopt those Council members’ beliefs. Rather, Hamtramck’s residents remain free to express their contrary views....
... The Supreme Court couldn’t have been any clearer—Lemon is dead. But the majority cracks the door open for the ghost of Lemon to keep haunting the Sixth Circuit. That crack risks subjecting future Establishment Clause plaintiffs to an amorphous test “flawed in its fundamentals, unworkable in practice, and inconsistent with our history and our precedents.”... [W]e should recognize what our sister circuits have already understood: Any inquiry into whether the government acted with a secular purpose has no place in Establishment Clause jurisprudence.
