United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge.
Harold Shurtleff and Camp Constitution
("Plaintiffs") have moved for a preliminary
injunction against Defendants, the City of Boston and Gregory
T. Rooney, in his official capacity as Commissioner of the
City of Boston Property Management Department (collectively,
"Defendants" or "the City"). D. 7.
Plaintiffs seek to enjoin the City from denying permission to
the Plaintiffs to display "the Christian flag" on a
City Hall flagpole in conjunction with their Constitution Day
and Citizenship Day event on or around September 17, 2018. D.
7 at 2. For the reasons discussed below, Plaintiffs'
motion for a preliminary injunction, D. 7, is DENIED.
Standard of Review
preliminary injunction is an 'extraordinary and drastic
remedy.'" Voice of the Arab World, Inc. v. MDTV
Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011)
(quoting Munaf v. Geren, 553 U.S. 674, 689-90
(2008)). To obtain a preliminary injunction, the Court must
consider: (1) the movant's likelihood of success on the
merits; (2) the likelihood of the movant suffering
irreparable harm; (3) the balance of equities; and (4)
whether granting the injunction is in the public interest.
Corp. Techs., Inc. v. Harnett, 731 F.3d 6, 9 (1st
Cir. 2013). Plaintiffs "bear the burden of
establishing that these four factors weigh in [their]
favor." Esso Standard Oil Co. (P.R.) v.
Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006); see
Rivera-Vega v. Conagra Inc., 70 F.3d 153, 164 (1st Cir.
1995) (quoting Pye ex rel. NLRB v. Sullivan Bros.
Printers, 38 F.3d 58, 63 (1994)) (noting that when the
relief sought by the moving party "is essentially the
final relief sought, the likelihood of success should be
strong") (emphasis in original) (internal
quotation marks omitted).
following facts, largely undisputed, are drawn from the
complaint, D. 1, Plaintiffs' motion for a preliminary
injunction, D. 7-8, and the City's opposition, D. 11. The
City owns and manages three flagpoles located in front of the
entrance to City Hall, in an area called City Hall Plaza. D.
11 at 2; D. 11-1 ¶ 5. The three poles are the same
height, approximately 83 feet tall. D. 11 at 2. One pole
regularly displays the flags of the United States and the
National League of Families Prisoner of War/Missing in Action
("POW/MIA") flag. Id. A second pole flies
the flag of the Commonwealth of Massachusetts. Id.
The dispute in this case centers on the third flagpole, which
displays the City of Boston flag except when replaced by
another flag-usually at the request of a third-party.
Id. Such a request is often made in conjunction with
a proposed third-party event to take place at a location
owned by the City, one of which is City Hall Plaza.
Id. Examples of other flags that have been raised on
the third flagpole are country flags, e.g., the flags of
Brazil, Ethiopia, Portugal, Puerto Rico, the People's
Republic of China and Cuba, and the flags of private
organizations, including the Juneteenth flag recognizing the
end of slavery, the LGBT rainbow pride flag, the pink
transgender rights flag, and the Bunker Hill Association
flag. D. 8 at 3; D. 11 at 2. As Plaintiffs allege, the flag
of Portugal contains "dots inside the blue shields
represent[ing] the five wounds of Christ when crucified"
and "thirty dots that represents [sic] the coins Judas
received for having betrayed Christ." D. 1 ¶ 36.
The City of Boston flag includes the Boston seal's Latin
inscription, which translates to "God be with us as he
was with our fathers." D. 1 ¶ 41(a). As Plaintiffs
note, the Bunker Hill Flag contains a red St. George's
cross. D. 1 ¶ 41(b). Many religious groups, including
Plaintiffs, have held events at City-owned properties in the
past. D. 8 at 4; D. 11 at3.
apply for a permit to raise a flag at City Hall and hold an
event on a City-owned property, a party submits an
application to the City. D. 11 at 3; D. 11-1 ¶ 13. The
City has published guidelines on its website for applicants.
D. 8 at 3; D. 11 at 3; D. 11-1 ¶ 13. The guidelines
state that an application may be denied if the event involves
illegal or dangerous activities or if it conflicts with
scheduled events. D. 8 at 3-4; D. 11 at 3. In addition, an
application may be denied if the applicant lacks an insurance
certification, lies on their application, has a history of
damaging city property or failing to pay city fees or fails
to comply with other administrative requirements. D. 8 at 4;
D. 11 at 3. After a party has submitted an application, the
City reviews the request to ensure it complies with all
guidelines. D. 1-8 at 2; D. 11 at 3; D.11-1 ¶ 15. The
Commissioner of Property Management reviews applications for
the City flagpole to ensure flag requests are
"consistent with the City's message, policies, and
practices." D. 11 at 3; D. 11-1 ¶¶ 16-17. The
City does not have a written policy regarding the content of
flags to be raised. D. 8 at 4.
28, 2017, Plaintiff Shurtleff emailed the City on behalf of
his organization, Camp Constitution, requesting to
"raise the Christian flag on City Hall Plaza,"
accompanied by "short speeches by some local clergy
focusing on Boston's history" on one of several
dates in September 2017. D. 1-1. The email included a
photograph of the Christian flag, D. 1-1, which
"displays a red Latin cross against a blue square
bordered on three sides by a white field." D. 1-4. On
September 5, 2017, the City denied Shurtleff s request to
raise the Christian flag without explanation. D. 1-3.
Shurtleff asked for the "official reason" for
denying the permit. Id. Defendant Rooney wrote to
Shurtleff that "[t]he City of Boston maintains a policy
and practice of respectfully refraining from flying
non-secular flags on the City Hall flagpoles." D. 1-4.
Rooney further explained that the City's "policy and
practice" was based on the First Amendment prohibition
on government establishing religion and the City's
authority to decide how to use its flagpoles, which are a
"limited government resource." Id. Rooney
concluded that "[t]he City would be willing to consider
a request to fly a non-religious flag, should [Shurtleff s]
organization elect to offer one." Id. In
response, Plaintiffs' counsel sent a letter to the City
on September 14, 2017, taking the position that the denial
was unconstitutional and declining to "submit a
'non-religious' flag." D. 1-6 at 2.
Plaintiffs' counsel attached a second application for
"Camp Constitution's Christian Flag Raising" on
October 19 or October 26, 2017. D. 1-5. The stated purpose of
the event was to "[c]elebrate and recognize the
contributions Boston's Christian community has made to
our city's cultural diversity, intellectual capital and
economic growth." Id. The letter stated that if
Plaintiffs did not receive a response by September 27, 2017,
Plaintiffs would take "additional actions to prevent
irreparable harm to the rights of [their] clients." D.
1-6 at 4. The City neither issued a permit to Plaintiffs nor
responded to the letter. D. 8 at 5; D. 11 at 4. Since
receiving the letter, Plaintiffs have not applied to hold
further events on City-owned property, with or without a
flag. D. 11 at 19-20.
6, 2018, Plaintiffs filed the present complaint seeking
injunctive relief, declaratory relief and damages against
Defendants. D. 1. On July 9, 2018, Plaintiffs moved for a
preliminary injunction. D. 7. On August 9, 2018, the Court
heard the parties on the pending motion and took this matter
under advisement. D. 14.
have asserted six claims-three federal and three state
constitutional: 1) a violation of the First Amendment free
speech clause; 2) a violation of the First Amendment
establishment clause; 3) a violation of the Fourteenth
Amendment equal protection clause; 4) a violation of the
freedom of speech clause of Article 16 of the Massachusetts
Declaration of Rights; 5) a violation of the
non-establishment of religion clauses of Articles 2 and 3 of
the Massachusetts Declaration of Rights; and 6) a violation
of equal protection under Articles 1 and 3 of the
Massachusetts Declaration of Rights.
initial matter, federal law governs the Court's analysis
of the Plaintiffs' claims under both the United States
and Massachusetts Constitutions. See, e.g., Commonwealth
v. Barnes, 461 Mass. 644, 650 (2012) (classifying the
free speech provisions of Article 16 of the Massachusetts
Declaration of Human rights as a "cognate
provision" of the First Amendment); Brackett v.
Civil Serv. Comm'n, 447 Mass. 233, 243 (2006)
(noting that "[t]he standard for equal protection
analysis under [Massachusetts'] Declaration of Rights is
the same as under the Federal Constitution");
Opinion of the Justices to the House of
Representatives, 423 Mass. 1244, 1247 (1996) (explaining
that the court's analysis under Article 2 of the
Declaration of Rights of the Massachusetts Constitution was
"based on the same standards applied under the
establishment clause of the First Amendment"). Here,
neither party has meaningfully cited to Massachusetts law to
assess the constitutionality of the City's actions. In a
single footnote, Plaintiffs assert that rights to freedom of
expression are generally coextensive under the United States
and Massachusetts Constitutions and that where the two
diverge, the state protections are "more
extensive." D. 8 at 6, n.l (citing Flaherty v.
Knapik, 999 F.Supp.2d 323, 332 (D. Mass. 2014)).
Plaintiffs, however, do not specifically address how these
"more extensive" protections under Massachusetts
law would apply to the instant case. Defendants assert that
federal jurisprudence governs the analysis. D. 11 at 5, n. 3.
Like Plaintiffs, they note that in some instances, provisions
of the Massachusetts Constitution are more protective than
those of the United States Constitution, but Defendants
contend that those instances are inapplicable to the present
case. Because neither party has argued that the Court should
rely on Massachusetts law rather than federal law, the Court
will address the Massachusetts constitutional claims
coextensively with their federal counterparts.
Likelihood of Success on the Merits
the Court considers all factors of the preliminary injunction
analysis, "[t]he sine qua non of this four-part inquiry
is likelihood of success on the merits: if the moving party
cannot demonstrate that [it] is likely to succeed in [its]
quest, the remaining factors become matters of idle
curiosity." New Comm Wireless Servs.. Inc. v.
SprintCom. Inc., 287 F.3d 1, 9 (1st Cir. 2002); see
Boathouse Grp., Inc. v. TigerLogic Corp., 777 F.Supp.2d
243, 248 (D. Mass. 2011) (explaining that "[l]ikelihood
of success on the merits is the critical factor in the
analysis and, accordingly, a strong likelihood of success may
overcome a 'somewhat less' showing of another
element") (quoting EEOC v. Astra U.S.A., Inc.,
94 F.3d 738, 743 (1st Cir. 1996)).