The city of Boston has agreed to pay $2.1 million in attorney fees and damages stemming from a 2017 case in which the city refused to allow a Christian flag to be flown at City Hall Plaza for Constitution Day.

The Supreme Court in May ruled, in a 9-0 decision, that the city erred in singling out the Christian flag, noting the city’s accommodation of hundreds of other flags representing dozens of groups and causes flown outside City Hall for years. The Boston Globe reported that the city had approved 284 requests to fly flags outside City Hall in the 12 previous years “from various countries, causes,businesses, and organizations,” according to court documents.

The city’s only denial of such a request was Hal Shurtleff’s application to fly the Christian flag to commemorate Constitution Day on Sept. 17, 2017. Shurtleff is founder of a civic group called Camp Constitution.

According to Liberty Counsel, the legal firm representing Shurtleff, the purpose in flying the flag was to celebrate 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.”

In the high court’s May decision, the since-retired liberal Justice Stephen Breyer admitted, “On balance, Boston did not make the raising and flying of private groups’ flags a form of government speech. That means, in turn, that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint” violated free speech protections. In fact, the court found the city had displayed a “come-one, come-all” approach to allowing various flags to fly beside the U.S. and Massachusetts flags on the plaza.

Back on Aug. 3, after the Supreme Court’s May ruling, Shurtleff’s Christian flag flew from City Hall Plaza to cheers from a crowd of supporters. The settlement brings the case to a close.

Boston officials said in a statement, “Settlement at this time also allows the city to avoid the costs and uncertainty associated with further litigation in this case.”

Liberty Counsel founder Mat Staver said in a statement: “We are pleased that after five years of litigation and a unanimous victory at the U.S. Supreme Court, we joined with Hal Shurtleff to finally let freedom fly in Boston, the Cradle of Liberty. The Christian flag case has established significant precedent, including the overturning of the 1971 ‘Lemon Test,’ which Justice Scalia once described as a ‘ghoul in a late night horror movie.’ The case of Shurtleff v. City of Boston finally buried this ghoul that haunted the First Amendment for 51 years.” 

The “Lemon test,” stemming from the 1971 Lemon v. Kurtzman case, created highly subjective requirements for allowing religious speech involving government entities or property.

In its decision for Shurtleff, the high court struck down the Lemon test, which Staver says led to “inconsistent and contradictory decisions over five decades.”

In an example of rare solidarity between liberals and conservatives, the American Civil Liberties Union and the Biden administration had filed amicus briefs supporting Camp Constitution in the case.

Photo: Mark Waugh/Alamy Stock Photo