Today, Liberty Counsel received a check from the City of Boston for $2,125,000 in final settlement of the Christian flag case.
When the Christian flag finally flew on the Boston City Hall Plaza public forum flagpole after five years of litigation and a unanimous U.S. Supreme Court ruling in Shurtleff v. City of Boston, Liberty Counsel Founder and Chairman Mat Staver stated, “When I argued this case before the U.S. Supreme Court on January 18, I realized that the city was in deep trouble. Justice Breyer and Justice Kagan asked the city attorney arguing the case ‘why did you not settle this case?’ I knew we had a big win.”
Now the City of Boston has finally “settled” this case after the 9-0 Supreme Court ruling and paid Liberty Counsel $2,125,000.00 for attorney’s fees and costs for the unconstitutional religious viewpoint discrimination of the Christian flag.
The Shurtleff case is having a big impact nationally. Many municipalities are reconsidering their flag policies. But far beyond the flag, Shurtleff set in motion the overturning of a 51-year-old case known as Lemon v. Kurtzman.
The Justices commented on the longstanding “Lemon Test” which has been used to determine if a law violates the First Amendment. This test has proven to be unworkable and has led to inconsistent and contradictory decisions on the constitutionality of 10 Commandment monuments and cross monuments like the “Peace Cross.”
Justice Gorsuch joined in a concurrence with Justice Thomas and stated, “It’s time to let Lemon lie in its grave.”
Justice Gorsuch continued, “How did the city get it so wrong? To be fair, at least some of the blame belongs here and traces back to Lemon v. Kurtzman, 403 U. S. 602 (1971). Issued during a ‘bygone era’ when this Court took a more freewheeling approach to interpreting legal texts, Food Marketing Institute v. Argus Leader Media, 588 U. S. ___, ___ (2019) (slip op., at 8), Lemon sought to devise a one-size-fits-all test for resolving Establishment Clause disputes. That project bypassed any inquiry into the Clause’s original meaning. It ignored longstanding precedents. And instead of bringing clarity to the area, Lemon produced only chaos. In time, this Court came to recognize these problems, abandoned Lemon, and returned to a more humble jurisprudence centered on the Constitution’s original meaning. Yet in this case, the city chose to follow Lemon anyway. It proved a costly decision, and Boston’s travails supply a cautionary tale for other localities and lower courts. The only sure thing Lemon yielded was new business for lawyers and judges.”
“Ultimately, Lemon devolved into a kind of children’s game. Start with a Christmas scene, a menorah, or a flag. Then pick your own ‘reasonable observer’ avatar. In this game, the avatar’s default settings are lazy, uninformed about history, and not particularly inclined to legal research. His default mood is irritable. To play, expose your avatar to the display and ask for his reaction. How does he feel about it? Mind you: Don’t ask him whether the proposed display actually amounts to an establishment of religion. Just ask him if he feels it ‘endorses’ religion. If so, game over,” wrote Gorsuch.
Liberty Counsel represents Boston resident Hal Shurtleff and his Christian civic organization, Camp Constitution. Shurtleff and Camp Constitution first asked the city in 2017 for a permit to raise the Christian flag on the “public forum” Boston City Hall flagpole to commemorate Constitution Day and Citizenship Day (September 17) and the civic and cultural contributions of the Christian community to the city of Boston, the Commonwealth of Massachusetts, religious tolerance, the Rule of Law and the U.S. Constitution. For 12 years, from 2005 to 2017, Boston approved 284 flag raisings by private organizations with no denials on the flagpoles that it designated a “public forum.” However, the city official denied Camp Constitution’s application in 2017 to fly the Christian flag on Constitution Day.
The policy stated that the flagpole was open to all applicants, but the City of Boston denied Hal Shurtleff’s application for the sole reason that the application form referred to the flag as a “Christian” flag. Had the application used any other non-religious word, Boston would have granted the request.
Liberty Counsel Founder and Chairman Mat Staver said, “The City of Boston has learned a costly lesson and paid a high price for religious viewpoint discrimination. Government cannot censor religious viewpoints under the guise of government speech. The freedom to express religious viewpoints has been made easier thanks to the Christian flag case. And the ‘Lemon test’ can no longer be used as a sword of censorship.”