On Monday, First Liberty Institute filed a friend-of-the-court brief at the Supreme Court of the United States on behalf of The American Legion in Shurtleff v. City of Boston. In that case, Boston city officials claimed that the Establishment Clause prohibited them from flying a religious flag on a city-owned flagpole. The brief argues that the lower court’s failure to apply the Supreme Court’s decision in The American Legion v. American Humanist Association amounts to “religious gerrymandering and a clear violation of the First Amendment.”
You can read the brief here.
“Boston displayed open religious hostility by denying only one flag – a religious flag – after approving all previous requests. This is unconstitutional and wrong,” said Christine Pratt, Counsel for First Liberty Institute. “After approving 284 flag raisings by private organizations, allowing flags of various countries, ethnicities, political, and cultural beliefs, it was only when the flag was religious that the City decided to say no. The lower court’s error needs to be corrected.”
For the past twelve years, Boston designated its flag poles as a “public forum” and permitted over 284 various private groups to fly their flags on the city’s flagpoles. The city never rejected a request to fly a flag—until Camp Constitution sought to raise a religious flag as part of its event commemorating the historic and civic contributions of the Christian community to City of Boston. Camp Constitution is a non-profit education group promoting Judeo-Christian history. Camp Constitution sued the city, the district court granted the city summary judgment, and the First Circuit upheld that decision.
According to First Liberty’s brief, “The First Circuit failed to properly apply American Legion, which finally put to rest the Lemon test once and for all for cases involving religious displays or symbols. The court erred first by applying Lemon, and second, by concluding that the City complied with the establishment clause in rejecting Shurtleff’s flag display request. Meanwhile, nearly every other federal circuit court had little difficulty correctly applying American Legion in their subsequent establishment clause cases. The First Circuit’s decision to uphold the City’s actions could be understood as religious gerrymandering and a clear violation of the First Amendment.”
Because many memorial services and veterans memorials incorporate religious imagery, the American Legion frequently defends these memorials from legal challenges. Most recently, the Legion successfully defended the Bladensburg Peace Cross from an Establishment Clause challenge in American Legion v. American Humanist Association.
