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'This Ghoul Haunted the First Amendment for 51 Years': Boston to Pay $2.1M in Christian Flag Discrimination Case

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After a five-year free speech legal battle that went all the way to the U.S. Supreme Court, the City of Boston, Massachusetts settled Tuesday with the Christian religious rights law firm Liberty Counsel for more than $2.1 million in attorney's fees and costs due to the city's unconstitutional "religious viewpoint discrimination" against the Christian flag. 

Read the Joint Notice of Settlement

"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," Liberty Counsel Founder and Chairman Mat Staver said. "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," Staver added.

"Liberty Counsel is entitled to attorney fees by statute as the prevailing party in a civil rights case," a spokesman for Boston Mayor Michelle Wu said in a statement to media outlets. 

"The City's Law Department determined this number to be reasonable based on the detailed billing statements provided by Liberty Counsel and through their own analysis of rates charged by attorneys with similar experience in Boston as well as nationally among attorneys practicing in the Supreme Court," the statement said.

"Settlement at this time also allows the City to avoid the costs and uncertainty associated with further litigation in this case," the statement said.

As CBN News previously reported, the Christian flag, which is white, with a red cross on a blue background in the upper left corner, was finally raised outside of Boston City Hall on Aug. 3, nearly three months after the high court's unanimous decision that ruled the city discriminated against Shurtleff and his Camp Constitution group because of his "religious viewpoint" when it refused permission for him to fly the banner on City Hall Plaza on Constitution Day 2017.

The city has since passed an ordinance that clarifies the rules for flag raisings.

On May 2, the U.S. Supreme Court ruled 9-0 that the City of Boston violated the First Amendment by censoring an organization that applied to have a Christian flag flown as one of three flags displayed outside of City Hall.

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As CBN News has reported, one flagpole flies the U.S. flag, another, the flag of the Commonwealth of Massachusetts, and the third flagpole is to celebrate other countries, cultures, and causes.  

Over a 12-year period, the city received nearly 300 applications for that third flagpole. They approved all of them, except one. 

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.

Boston suspended its flagpole program in 2021 pending a ruling from the high court. 

While the City of Boston argued there were clear parameters over the flags it considered acceptable, ultimately, the justices expressed that it seemed officials were operating from the mistaken belief that it would be unconstitutional to allow one of those to be religious.

The justices acknowledged rejecting the flag because it was referred to as a Christian flag on the application was discriminatory and there is no Establishment Clause defense. 

Referring to its decision, the high court wrote, "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 'abridg{ed}' their 'freedom of speech.'" 

Last month, Liberty Counsel tweeted a Monday motivation to its followers, writing: "There are some things worth fighting for."

"Never give up," the law firm wrote. "We lost four times in the lower courts before winning 9-0 at SCOTUS in our Boston flag case earlier this year. There are things worth fighting for, and victory over religious viewpoint discrimination is one of them."

Watch Liberty Counsel's video below of how the Christian flag made history in 2022. 

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About The Author

Steve Warren is a senior multimedia producer for CBN News. Warren has worked in the news departments of television stations and cable networks across the country. In addition, he also worked as a producer-director in television production and on-air promotion. A Civil War historian, he authored the book The Second Battle of Cabin Creek: Brilliant Victory. It was the companion book to the television documentary titled Last Raid at Cabin Creek currently streaming on Amazon Prime. He holds an M.A. in Journalism from the University of Oklahoma and a B.A. in Communication from the University of