Shurtleff v. City of Bos.

986 F.3d 78

Harold SHURTLEFF and Camp Constitution, a public charitable trust, Plaintiffs, Appellants,

v.CITY OF BOSTON and Gregory T. Rooney, in his Official Capacity as Commissioner of the City of Boston Property Management Division, Defendants, Appellees.

No. 20-1158

United States Court of Appeals, First Circuit.

January 22, 2021

Mathew D. Staver, Orlando, FL, with whom Horatio G. Mihet, Roger K. Gannam, Jacksonville, FL, Daniel J. Schmid, and Liberty Counsel were on brief, for appellants.

Robert Arcangeli, Assistant Corporation Counsel, with whom Eugene L. O'Flaherty, Corporation Counsel, was on brief, for appellees.

Alex J. Luchenitser, Richard B. Katskee, Patrick Grubel, Steven M. Freeman, David L. Barkey, New York, NY, Amy E. Feinman, Cindy Nesbit, and Monica Miller on brief for Americans United for Separation of Church and State; Anti-Defamation League; American Humanist Association; Central Conference of American Rabbis; Covenant Network of Presbyterians; Global Justice Institute; Hindu American Foundation; Maine Conference, United Church of Christ; Men of Reform Judaism; Methodist Federation For Social Action; National Council of Jewish Women; New Hampshire Conference, United Church of Christ; People for the American Way Foundation; Reconstructionist Rabbinical Association; The Sikh Coalition; Southern New England Conference, United Church of Christ; Union for Reform Judaism; and Women of Reform Judaism, amici curiae.

Before Lynch, Selya, and Lipez, Circuit Judges.

SELYA, Circuit Judge.

This case comes before us for a second time, albeit in a different posture. The issues are much the same, though presented in sharper focus on a better-developed record. As such, they conjure up what might be described, in a turn of phrase popularly attributed to Lawrence "Yogi" Berra, as a sense of "déjà vu all over again."¹

The case has its genesis in a suit filed by plaintiffs Harold Shurtleff and Camp Constitution in which they complained that the defendants — the City of Boston and Gregory T. Rooney, in his official capacity as Commissioner of Boston's Property Management Department (collectively, the City) — trampled their constitutional rights by refusing to fly a pennant, openly acknowledged by the plaintiffs to be a "Christian Flag," from a flagpole at Boston City Hall. The district court granted summary judgment in favor of the City. See Shurtleff v. City of Bos. (Shurtleff III ), No. 18-CV-11417, ––– F.Supp.3d ––––, ––––, 2020 WL 555248, at *6 (D. Mass. Feb. 4, 2020). Concluding, as we do, that the government speech doctrine bars the maintenance of the plaintiffs' free speech claims and that their remaining claims under the Establishment Clause and the Equal Protection Clause lack bite, we affirm.

I. BACKGROUND

We begin by rehearsing the relevant facts (most of which are undisputed, though the inferences from them are not) and the travel of the case. The City owns and manages three flagpoles in an area in front of City Hall referred to as City Hall Plaza. The three flagpoles are each approximately eighty-three feet tall and are prominently located in front of the entrance to City Hall — the seat of Boston's municipal government. Ordinarily, the City raises the United States flag and the POW/MIA flag on one flagpole, the Commonwealth of Massachusetts flag on the second flagpole, and its own flag on the third flagpole. Upon request and after approval, though, the City will from time to time replace its flag with another flag for a limited period of time.

Such requests are typically made by a third party in connection with an event taking place within the immediate area of the flagpoles. In welcoming these third-party banners, the City's website proclaims that the City seeks to "commemorate flags from many countries and communities at Boston City Hall Plaza during the year" (emphasis in original). The opportunity to display these kinds of flags was created in order to establish "an environment in the City where everyone feels included, ... to raise awareness in Greater Boston and beyond about the many countries and cultures around the world[, and] to foster diversity and build and strengthen connections among Boston's many communities."

In addition to these flag-raisings, the City also allows organizations to hold events in several locations near City Hall. Endeavoring to educate those who may be interested in hosting such an event, the City has published event guidelines on its website. The guidelines make clear that people need the City's permission to hold events at City-owned properties and direct interested parties to an application form.

The application form (which is available either online or as a document) allows applicants to designate the location at which they wish to hold an event, listing six options: Faneuil Hall, Sam Adams Park, City Hall Plaza, the City Hall Lobby, the City Hall Flag Poles, and the North Stage. Although those interested in hosting a flag-raising event must submit an application form, neither the electronic nor the written version of the form mentions the option of raising a flag on any of the City's three flagpoles.

Once the City receives an application, its policy and practice are to perform an initial review. The purpose of this review is in part to ensure that there are no conflicting events occupying the same space, that the application is complete and accurately describes the proposed event, that the event would not endanger the public, and that other administrative requirements have been satisfied.

The obligation to review and act upon applications falls into Rooney's domain. Before a flag-raising event is approved, Rooney must determine that the City's decision to raise a flag is consistent with the City's message, policies, and practices. Each applicant submits a short description of the flag that it wishes to hoist (e.g., "Portuguese Flag"), and it is Rooney's invariable practice to act upon the flag-raising request without seeing the actual flag. The record makes manifest that Rooney has never sought to look at a flag before approving an application. If Rooney concludes that the event meets the City's standards, he then approves the flag-raising event. And if a flag-raising event is disapproved, the City offers the applicant the opportunity to hold the proposed event, without the flag-raising, either at City Hall Plaza or at some other location.

In a twelve-year period (from June 2005 through June 2017), the City approved 284 flag-raising events that implicated its third flagpole. These events were in connection with ethnic and other cultural celebrations, the arrival of dignitaries from other countries, the commemoration of historic events in other countries, and the celebration of certain causes (such as "gay pride"). The City also has raised on its third flagpole the flags of other countries, including Albania, Brazil, Ethiopia, Italy, Panama, Peru, Portugal, Mexico, as well as China, Cuba, and Turkey. So, too, it has raised the flags of Puerto Rico and private organizations, such as the Chinese Progressive Association, National Juneteenth Observance Foundation, Bunker Hill Association, and Boston Pride. Broadly speaking, we group these approvals as approvals for "the flags of countries, civic organizations, or secular causes."

Against this backdrop, we introduce the plaintiffs. Camp Constitution is an all-volunteer association that seeks "to enhance understanding of the country's Judeo-Christian moral heritage." Shurtleff is the founder and director of Camp Constitution. In July of 2017, the plaintiffs emailed Lisa Menino, the City's senior special events official, seeking leave to fly their own flag over City Hall Plaza. In their words, the proposed event would "raise the Christian Flag" and feature "short speeches by some local clergy focusing on Boston's history."

At the time of this request, the City had no written policy for handling flag-raising applications. What is more, Rooney had never before denied a flag-raising application. On this occasion, though, the plaintiffs' request "concerned" Rooney because he considered it to be the first request he had received related to a religious flag.

Of course, some of the flags that the City had raised contained religious imagery. The Portuguese flag, for instance, contains "dots inside blue shields represent[ing] the five wounds of Christ when crucified" and "thirty dots that represent[ ] [sic] the coins Judas received for having betrayed Christ." As another example, the Turkish flag situates the star and crescent of the Islamic Ottoman Empire in white against a red background. Indeed, the City's own flag includes a Latin inscription, which translates as "God be with us as he was with our fathers." None of the flags that the City had previously approved, however, came with a religious description.

Mulling the plaintiffs' application, Rooney conducted a review of past flag-raising requests and determined that the City had no past practice of flying a religious flag. He proceeded to deny the plaintiffs' flag-raising request. In response to the plaintiffs' inquiry into the reason for the denial, Rooney responded that the City's policy was to refrain respectfully from flying non-secular third-party flags in accordance with the First Amendment's prohibition of government establishment of religion. Rooney offered to fly some non-religious flag instead. The plaintiffs spurned this offer.

In September of 2017, Shurtleff once again requested permission for a flag-raising event at City Hall Plaza. This time, he submitted a flag-raising application that titled the event as "Camp Constitution Christian Flag Raising." The event, which was intended to "[c]elebrate and recognize the contributions Boston's Christian community has made to our city's cultural diversity, intellectual capital and economic growth," would feature three speakers: Reverend Steve Craft (who would speak on the need for racial reconciliation), Pastor William Levi (who...