Shurtleff v. City of Boston

United States Court of Appeals
For the First Circuit
No. 20-1158
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.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Lynch, Selya, and Lipez,
Circuit Judges.
Mathew D. Staver, with whom Horatio G. Mihet, Roger K. Gannam,
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, 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.
January 22, 2021
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, 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.
1We say "popularly attributed to" because at least one
scholar has declared that "although this [phrase] is commonly cited
as a 'Berra-ism,' Yogi Berra denies ever saying it." Ralph Keyes,
"Nice Guys Finish Seventh": False Phrases, Spurious Sayings, and
Familiar Misquotations 152 (1992).
- 3 -
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."
- 4 -
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.
- 5 -
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
- 6 -
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]
- 7 -
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
- 8 -
speakers: Reverend Steve Craft (who would speak on the need for
racial reconciliation), Pastor William Levi (who would speak on
"the blessings of religious freedom in the U.S."), and Shurtleff
himself (who would present a Boston-centric historical overview).
Believing that its response to the plaintiffs' first flag-raising
request was self-explanatory, the City chose not to respond
further.
About a year later, the City embodied its past policy
and practice in a written Flag Raising Policy. This policy
includes seven flag raising rules, the first of which forbids the
"display [of] flags deemed to be inappropriate or offensive in
nature or those supporting discrimination, prejudice, or religious
movements."
On July 6, 2018 — roughly three months before the City
adopted its written Flag Raising Policy — the plaintiffs sued the
City in the federal district court, seeking injunctive relief, a
declaratory judgment, and money damages. Three days later, they
moved for a preliminary injunction. The district court denied the
plaintiffs' motion, see Shurtleff v. City of Bos. (Shurtleff I),
337 F. Supp. 3d 66 (D. Mass. 2018), and we affirmed, see Shurtleff
v. City of Bos. (Shurtleff II), 928 F.3d 166 (1st Cir. 2019). Back
in the district court, the parties conducted discovery and
eventually cross-moved for summary judgment. The district court
heard arguments and, in a comprehensive rescript, granted the
- 9 -
City's motion and denied the plaintiffs' cross-motion. See
Shurtleff III, 2020 WL 555248, at *6. This timely appeal followed.
II. ANALYSIS
The plaintiffs assign error to the district court’s
grant of summary judgment. Specifically, they challenge the
court's holding that the City's display of third-party flags on
the City Hall flagpole constitutes government speech, not subject
to most First Amendment restrictions. In their view, the City's
flagpoles comprise a public forum, thus consigning the City's
content-based restriction of plaintiffs' speech to strict scrutiny
(which they say the restriction cannot pass). Relatedly, they
contend that the City's permitting process for the raising of
third-party flags vests in government officials unbridled
discretion to approve and deny protected speech and, thus, imposes
an unconstitutional prior restraint on speech. Finally, they
contend that the City's refusal to fly a religious flag
transgresses both the Establishment Clause and the Equal
Protection Clause.
The City urges us to reject each and all of these
contentions and simply to affirm the district court's rulings. It
is joined by a group of amici, who have filed a helpful brief in
support of the judgment below.
We afford de novo review to a district court's entry of
summary judgment. See Dávila v. Corporación De P.R. Para La
- 10 -
Difusión Pública, 498 F.3d 9, 12 (1st Cir. 2007). In conducting
this tamisage, we assess the facts in the light most flattering to
the nonmovants (here, the plaintiffs) and draw all reasonable
inferences to their behoof. See id. Summary judgment is
appropriate only when the record demonstrates that there is no
genuine issue as to any material fact and confirms that the movants
are entitled to judgment as a matter of law. See Morelli v.
Webster, 552 F.3d 12, 18 (1st Cir. 2009). That cross-motions for
summary judgment were simultaneously adjudicated by the district
court does not alter the applicable standards of review. See
Blackie v. Maine, 75 F.3d 716, 720-21 (1st Cir. 1996).
With these parameters in place, we turn to the
plaintiffs' asseverational array, taking their arguments
sequentially. At the outset, though, we pause to say a few words
about the relevance of our earlier opinion (Shurtleff II).
A. Our Earlier Opinion.
We think it useful to center our Shurtleff II opinion
within the preliminary injunction framework. That framework
anticipates a four-part inquiry, see Corp. Techs., Inc. v. Harnett,
731 F.3d 6, 9 (1st Cir. 2013); Ross-Simons of Warwick, Inc. v.
Baccarat, Inc., 102 F.3d 12, 15 (1st Cir. 1996), requiring a
district court to evaluate "the movant's likelihood of success on
the merits; whether and to what extent the movant will suffer
irreparable harm in the absence of preliminary injunctive relief;
- 11 -
the balance of relative hardships, that is, the hardship to the
nonmovant if enjoined as opposed to the hardship to the movant if
no injunction issues; and the effect, if any, that either a
preliminary injunction or the absence of one will have on the
public interest," Ryan v. U.S. Immig. & Customs Enf't, 974 F.3d 9,
18 (1st Cir. 2020). Among these four factors, "[t]he movant's
likelihood of success on the merits weighs most heavily in the
preliminary injunction calculus." Id. As we have explained, "[i]f
the movant 'cannot demonstrate that he is likely to succeed in his
quest, the remaining factors become matters of idle curiosity.'"
Id. (quoting New Comm Wireless Servs., Inc. v. SprintCom, Inc.,
287 F.3d 1, 9 (1st Cir. 2002)).
In Shurtleff I, the district court denied the
plaintiffs' threshold motion for a preliminary injunction. See
377 F. Supp. 3d at 79. The court determined, among other things,
that the plaintiffs had not shown a likelihood of succeeding on
the merits of their claims. See id. at 78. On appeal, we affirmed
this determination, concluding that the district court's appraisal
was not an abuse of discretion. See Shurtleff II, 928 F.3d at
171.
The fact that Shurtleff II upheld the district court's
determination that the plaintiffs were unlikely to prevail on the
same claims that they now pursue is not determinative of either
the issues that were before the district court in Shurtleff III or
- 12 -
the issues that confront us here. There is, after all, a salient
distinction between a decision granting or denying a preliminary
injunction and a final decision on the merits (such as the entry
of summary judgment). At the preliminary injunction stage, "an
inquiring court need not conclusively determine the merits of the
movant's claim; it is enough for the court simply to evaluate the
likelihood vel non that the movant ultimately will prevail on the
merits." Ryan, 974 F.3d at 18.
Here, however, the appealed decision is one on the
merits. In Shurtleff III, the district court had to determine
whether the City had shown that there were no genuine issues of
material fact and, if so, that it was entitled to judgment as a
matter of law. See Morelli, 552 F.3d at 18. Moreover, the court
had to make this determination on a record that was considerably
better developed than the record available to it at the preliminary
injunction stage. See Univ. of Tex. v. Camenisch, 451 U.S. 390,
395-96 (1981). Thus, our decision in Shurtleff II, which was at
most a validation of the district court's prediction of probable
outcomes, see Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236,
238 (1st Cir. 1986), could inform the district court's subsequent
summary judgment decision but could not control it, see Univ. of
Tex., 451 U.S. at 395.
- 13 -
Shurtleff II relates to the current appeal in the same
way. That decision, therefore, does not determine the outcome of
this merits appeal. See id. We proceed accordingly.
B. The Free Speech Claims.
The plaintiffs' most loudly bruited argument is that the
Free Speech Clause of the First Amendment does not permit the City
to display a plethora of third-party flags in front of City Hall
while refusing to display the Christian Flag proffered by the
plaintiffs. The district court determined that this group of
claims was foreclosed by the government speech doctrine, see
Shurtleff III, 2020 WL 555248, at *5, and so do we.
The proposition that the plaintiffs' free speech claims
rise or fall on the classification of the challenged speech is
uncontroversial. Even though the First Amendment restricts
government regulation of private speech in government-designated
public forums, such restrictions do not apply to government speech.
See Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009) ("The
Free Speech Clause restricts government regulation of private
speech; it does not regulate government speech."); Walker v. Tex.
Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 215 (2015)
("[When] the State is speaking on its own behalf, the First
Amendment strictures that attend the various types of government-
established forums do not apply."). Here, the classification of
the speech in question is pivotal — but before attempting to
- 14 -
resolve this classification inquiry, we map the relevant contours
of the government speech doctrine.
Two cases chiefly inform the configuration of this map.
In Summum, the Supreme Court considered whether "the Free Speech
Clause of the First Amendment entitles a private group to insist
that a municipality permit it to place a permanent monument in a
city park in which other donated monuments were previously
erected." 555 U.S. at 464. The respondent, a religious
organization, sought leave from the city to erect a monument that
would contain "the Seven Aphorisms of SUMMUM," which the respondent
said would be similar "in size and nature to the Ten Commandments
monument" then in place at the city park. Id. at 465. The city
denied the respondent's request, and the respondent sued (alleging
an abridgment of the right to free speech). See id. at 465-66.
The Court upheld the city's decision, ruling that because the
display of "a permanent monument in a public park . . . is best
viewed as a form of government speech," such a display is "not
subject to scrutiny under the Free Speech Clause." Id. at 464.
In determining that the placement of such a monument in
a city-owned park constituted government speech, the Summum Court
relied primarily on three factors. First, the Court focused on
the history of governmental use of monuments, explaining that
"[g]overnments have long used monuments to speak to the public"
and that "[w]hen a government entity arranges for the construction
- 15 -
of a monument, it does so because it wishes to convey some thought
or instill some feeling in those who see the structure." Id. at
470. Second, the Court considered whether the message conveyed by
the monuments would be ascribed to the government. Id. at 471.
The Court concluded that, in the city-park context, "there is
little chance" that observers will fail to identify the government
as the speaker. Id. Third, and finally, the Court considered the
fact that the municipality "effectively controlled" the messages
sent by the monuments because it exercised "final approval
authority over their selection." Id. at 473. Giving weight to
these factors, the Court determined that the erection of privately
donated monuments in a city park constituted government speech.
See id. at 472-73.
A few years later, the Court revisited the government
speech doctrine. In Walker, the issue was whether the rejection
of a "specialty license plate design featuring a Confederate battle
flag" by the Texas Department of Motor Vehicles "violated the
Constitution's free speech guarantees." 576 U.S. at 203-04.
Concluding that specialty license plates convey government speech,
the Court held that Texas was "entitled to refuse to issue plates"
that featured the proffered design. Id. at 219-20. In reaching
this conclusion, the Court again employed the three-factor test
developed in Summum.
- 16 -
The Walker Court began by examining the history of the
use of the medium by the government, then inquired into how closely
the public identified the medium with the government, and went on
to assay the degree of control the government maintained over the
message conveyed. See id. at 210-13. In traveling down this path,
the Court first found that license plates "long have communicated
messages from the States." Id. at 211. Next, it found that the
public reasonably interprets license plates as conveying a message
on the state's behalf both because the plates bear "the name
'TEXAS' in large letters" and because the state mandates vehicle
owners to display the plate, owns all license plate designs, and
dictates the manner in which vehicle owners may dispose of the
plates. Id. at 212. Finally, the Court found that the state
"effectively controlled" the messages conveyed on the license
plates because it retained "final approval authority." Id. at
213. These three factors, taken together, led inexorably to the
conclusion that the challenged speech constituted government
speech. See id.
The three-part Summum/Walker test is controlling here.
Mindful that the Court has indicated that Walker "likely marks the
outer bounds of the government-speech doctrine," Matal v. Tam, 137
S. Ct. 1744, 1760 (2017), we turn to whether the speech at issue
falls within those bounds.
- 17 -
We start by looking at the historical use of flags by
the government. The parties do not gainsay that governments have
used flags throughout history to communicate messages and ideas.
See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624,
632 (1943) ("The use of an emblem or flag to symbolize some system,
idea, institution, or personality, is a short cut from mind to
mind."); Griffin v. Sec'y of Veterans Affs., 288 F.3d 1309, 1324
(Fed. Cir. 2002) ("We have no doubt that the government engages in
speech when it flies its own flags over a national cemetery, and
that its choice of which flags to fly may favor one viewpoint over
another."). Flags themselves have the capacity to communicate
messages pertaining to, say, a government's identity, values, or
military strength. See Shurtleff II, 928 F.3d at 173 n.4. Cf.
Summum, 555 U.S. at 470 ("Governments have long used monuments
. . . to remind their subjects of their authority and power[,]
. . . to commemorate military victories and sacrifices and other
events of civic importance [or] to convey some thought or instill
some feeling in those who see the structure."). That a government
flies a flag as a "symbolic act" and signal of a greater message
to the public is indisputable. See Shurtleff II, 928 F.3d at 173.
With respect to the issue of whether an observer would
attribute the message of a third-party flag on the City's third
flagpole to the City, we found it likely the last time around that
such an attribution would take place. See id. The record has
- 18 -
since evolved, and these evolutionary changes bolster our earlier
conclusion. As we previously noted, an observer would arrive in
front of City Hall, "the entrance to Boston's seat of government."
Id. at 174. She would then see a city employee replace the city
flag with a third-party flag and turn the crank until the third-
party flag joins the United States flag and the Massachusetts flag,
both "powerful governmental symbols," in the sky (eighty-three
feet above the ground). Id. A faraway observer (one without a
view of the Plaza) would see those three flags waiving in unison,
side-by-side, from matching flagpoles.
That the third-party flag is part of a broader display
cannot be understated. As the Summum Court explained, the manner
in which speech is presented, including the incorporation of other
monuments in the vicinity, changes the message communicated. See
555 U.S. at 477. Here, the three flags are meant to be — and in
fact are — viewed together. The sky-high City Hall display of
three flags flying in close proximity communicates the symbolic
unity of the three flags. It therefore strains credulity to
believe that an observer would partition such a coordinated three-
flag display (or a four-flag display if one counts the POW/MIA
flag) into a series of separate yet simultaneous messages (two
that the government endorses and another as to which the government
disclaims any relation). Cf. Summum, 555 U.S. 471 ("It certainly
is not common for property owners to open up their property for
- 19 -
the installation of permanent monuments that convey a message with
which they do not wish to be associated."). Although the
plaintiffs might perhaps make the case that a lone Christian Flag,
nowhere near City Hall, would be seen as devoid of any connection
to a government entity, a City Hall display that places such a
flag next to the flag of the United States and the flag of the
Commonwealth of Massachusetts communicates a far different message
to an observer: that the City flies all three flags.
The plaintiffs demur, insisting that an observer, in
these circumstances, would not interpret a third-party flag as a
message from the City. This demurrer is premised on the notion
that the question of whether expression is likely to be viewed as
government speech must be answered from the viewpoint of a
"reasonable and informed" observer. Building to a crescendo, the
plaintiffs posit that a reasonable and informed observer not only
would see the flag, but also would take note of the intricacies of
the administrative process leading up to its display. Stripped of
rhetorical flourishes, the plaintiffs ask us to consider the
perspective of an observer who — in their words — knows:
(1) that the City's open invitation policy and
practice "seeks to accommodate all
applications seeking to take advantage of the
City of Boston's public forums" . . .; (2)
that the City permits private organizations
- 20 -
temporarily to raise their flags . . . as a
"substitute" for the government's flag; (3)
that the City has approved at least 284 flag
raising events . . .; (4) that during the year
preceding Camp Constitution's application the
City approved an average of over three flag
raisings per month; (5) that prior to Camp
Constitution's application, flag raising
denials were exceedingly rare, and that Rooney
had never denied a flag raising request; (6)
that the City will allow essentially any event
to take place on City Hall Plaza; and (7) that
the City does not even review the content of
the substitute flags . . . (emphasis in
original).
Relatedly, the plaintiffs insist that the messages of the third-
party flags cannot be attributed to the City because "Rooney swore
he had no knowledge of anyone's ever believing the City has
endorsed or adopted the message of a private organization that was
allowed access to the flag raising forum." An observer armed with
this information, the plaintiffs say, would not attribute the
third-party-flag speech to the City.
The plaintiffs' conception of a "reasonable and
informed" observer is not plucked from thin air. Justice Souter,
- 21 -
concurring in Summum, advocated for a standard based on the
reaction of a "reasonable and fully informed observer." 555 U.S.
at 487 (Souter, J., concurring). The Court did not explicitly
adopt this standard, but has nonetheless focused on the physical
attributes of the speech and general information about the locus
at which the speech takes place. In Summum, for example, the Court
considered what "persons who observe" such monuments see, id. at
471, and added that most people know that parks are government
property, id. at 472 ("Public parks are often closely identified
in the public mind with the government unit that owns the land.").
So, too, the Walker Court considered the physical attributes of
the speech visible to "persons who observe" license plates, 576
U.S. at 212 ("The governmental nature of the plates is clear from
their faces . . . ."), as well as widely available information
about license plates, id. ("[T]he State requires Texas vehicle
owners to display license plates, and every Texas license plate is
issued by the State . . . . Texas also owns the designs on its
license plates . . . . And Texas dictates the manner in which
drivers may dispose of unused plates."). The City's treatment of
third-party flags satisfies the standard that the Supreme Court
has set for attribution: an observer not only would see the third-
party flag flying with two government flags in front of a building
labeled "Boston City Hall" but also would reason that the building
- 22 -
is a government building and that the imposing flagpoles located
on that property are owned and dressed by the City.2
The plaintiffs have another string to their bow. They
argue that the Summum/Walker framework is inapplicable because the
third-party flags that the City flies lack the permanence of the
monuments in Summum. We rejected this same argument in Shurtleff
II, 928 F.3d at 175, and the plaintiffs have advanced no compelling
reason for us to revisit the matter. To our way of thinking, the
decisive datum is that the Walker Court explicitly disavowed any
suggestion that permanence is a prerequisite for finding
government speech. See 576 U.S. at 213-14.
We turn next to the question of whether the City
maintains control over the messages conveyed by the third-party
2 We add, moreover, that even if we were prepared to adopt a
"reasonable and informed observer" standard, such a standard would
be satisfied here. See Shurtleff II, 928 F.3d at 173 n.5. It is
the manner and circumstances in which a third-party flag is
displayed, together with the logical inferences that a reasonable
and informed observer would likely draw based on available
information, that lead to a conclusion that the third-party-flag
speech can be attributed to the government.
Relatedly, Justice Souter's concurrence in Summum warned
primarily against the deployment of categorical rules in
determining what constitutes government speech. Summum, 555 U.S.
at 487 (Souter, J., concurring). Contrary to the plaintiffs'
formulation of the "reasonable and informed observer" standard,
neither Justice Souter's concurrence nor any other cited opinion
has suggested that such an observer would necessarily know things
like the City's regulations for flag-raising or the decisionmaking
trends of a specific government employee. Absent any vestige of
precedential support, we decline the plaintiffs' invitation to
adopt and apply a newly minted standard.
- 23 -
flags. The City has instituted procedures to ensure both that it
is aware of all flags flown and that such flags display approvable
messages. It is undisputed that "[i]nterested persons and
organizations must apply to the City for a permit before they can
raise a flag on this flagpole," and that the flag-raising
guidelines expressly require the City's permission to fly a third-
party flag. Shurtleff II, 928 F.3d at 174. And in order for a
flag-raising request to secure approval, Rooney must review the
request to determine whether the proposed flag-raising is
consistent with the City's message, policies, and practices. Cf.
Summum, 555 U.S. at 472 (finding government speech when
"[g]overnment decisionmakers select the monuments that portray
what they view as appropriate for the place in question, taking
into account such content-based factors as esthetics, history, and
local culture"); Walker, 576 U.S. at 213 (finding control when
"[t]he Board must approve every specialty plate design proposal
before the design can appear on a Texas plate").
What is more, the City limits physical access to the
flagpole: the flagpole is restricted government property, and the
City restricts access to it by providing only parties whose
requests are approved with a hand crank. All in all, the decision
to fly a flag falls squarely on the City, and not on any other
entity or person. This final approval authority means that when
a third-party flag flies over City Hall, it flies only because the
- 24 -
City chose to fly it. And in reserving this final approval
authority, the City "has 'effectively controlled' the messages
conveyed" in the flag display. Id. (quoting Johanns v. Livestock
Mktg. Ass'n, 544 U.S. 550, 560 (2005)).
The plaintiffs argue that the type of government
practices that led the Court in Summum and Walker to find
government control are not present here. They note, for example,
that the Summum Court observed that the government "took ownership
of [the] monument" and that "[a]ll rights previously possessed by
the monument's donor [were] relinquished." 555 U.S. at 473-74.
They also note that, in Walker, the state owned the designs that
were on all specialty license plates, issued all state plates, and
dictated how a driver may dispose of a plate. 576 U.S. at 212.
Here, by contrast, the City does not require a private organization
that seeks to raise a flag to surrender ownership of that flag,
nor does it require that a flag bear any particular design or logo.
This argument lacks force. The government's ownership
of a monument or a design are relevant to the "attribution" prong
of the Summum/Walker test — not to the "control" prong. See
Walker, 576 U.S. at 212; Summum, 555 U.S. at 473-74. The latter
prong instead turns on whether the government "effectively
control[s]" the message conveyed through selection. See Summum,
555 U.S. at 473 (quoting Johanns, 544 U.S. at 560-61). The City's
- 25 -
final approval authority over all third-party flags evinces choice
and selection and, thus, suffices to show effective control.
Struggling to undermine the finding of control, the
plaintiffs highlight three pieces of evidence uncovered during
pretrial discovery (and not available at the preliminary
injunction stage): first, until the plaintiffs came along, the
City had not previously denied a flag-raising request; second,
Rooney's customary practice was not to ask to see a proposed flag
before approving such a request; and third, although the
preliminary injunction record previously noted only fifteen
instances of flag-raisings, the expanded record reveals that the
City had approved 284 requests. The plaintiffs submit that these
freshly unearthed facts demonstrate that the City did not exercise
meaningful control over the message conveyed by third-party flags.
We do not agree.
We find the rate of rejection unpersuasive because the
exercise of the authority to reject is necessarily case-specific
and limited by the kinds of requests the City receives. Since the
City had never rejected a request, the flag-raisings in the record
are, in effect, a record of the requests received. Every request
has been for the flag of a country, civic organization, or secular
cause. That potential applicants have successfully self-selected
and offered a narrow set of acceptable secular designs cannot be
evidence that the City is open to fly any flag.
- 26 -
The limited kinds of unique flags and the repeated
requests to fly the same flags also help to explain Rooney's
practice. Some of the flags were no doubt familiar to him and, at
any rate, a request to fly a flag includes a short description of
the flag. Because Rooney recognizes the names of sovereign
nations, because the City had seen most, if not all, of these flags
in previous years, and because in twelve years no person had
requested to fly anything that was not the flag of a country, civic
organization, or secular cause, a short description of each
proposed flag was sufficient for Rooney's purposes. But once
Rooney received a request for a flag he did not recognize as
falling within an acceptable secular category — the Christian Flag
— he demanded that he see it.
The greater number of flag-raisings is likewise
insufficient to ground a finding that the City does not control
the flagpole. The Walker Court was clear that the number of flags
— or messages — is not dispositive. 576 U.S. at 214. Here, the
Walker's Court logic applies because the number of flags approved
by the City is not evidence of universal access to the flagpole.
After all, the group of third-party flags raised over City Hall
during the twelve-year period is not a random assortment. Each
flag represents a country, civic organization, or secular cause.
Instead of evincing a lack of control, the greater number of flag-
raisings reveals a pattern that supports the City's claim that it
- 27 -
approves only flags that it deems "consistent with the City's
messages, policies, and practices."
In this context, the Supreme Court has not laid out an
elaborate protocol for finding effective control. Broadly
speaking, it is the City's "select[ion] [of] those [flags] that it
wants to display for the purpose of presenting the image of the
City that it wishes to project" that establishes City control over
the message conveyed. Summum, 555 U.S. at 473. In the case at
hand, Rooney's approval practices have not been shown to be a
rubber stamp. There is nothing remarkable about the fact that
some flag descriptions may trigger further review, while others do
not. Wherever the line falls, that a line exists is evidence of
"selective receptivity." See id. at 471. That selectivity exists
here, and it is a selectivity born out of a concern for the City's
image. The record, taken as a whole, plainly shows a city
conscious of the message that it flies on the third flagpole and
an accompanying selectivity to tailor that message to the City's
desired image. See id. Accordingly, each of the three
Summum/Walker factors supports the conclusion that the City
engages in government speech when it decides which flags to display
in front of City Hall.
The plaintiffs demur. They deride this classification
of the City's speech, arguing vehemently that the City does not
engage in expressive activity through these third-party flags
- 28 -
because it has designated the third flagpole as a forum for private
speech. In support, they offer two arguments. First, the
plaintiffs say that the City explicitly opened the flagpole to
private expression. Specifically, they point to the third page of
the City's paper event application form, which states that the
City "seeks to accommodate all applicants seeking to take advantage
of the City of Boston's public forums." The plaintiffs suggest
that the phrases "all applicants" and "public forums" transmogrify
the third flagpole into a government-designated public forum.
Second, and relatedly, the plaintiffs argue that the City
implicitly opened the flagpole for public discourse because the
record now shows that the City had granted flag-raising permission
284 times without ever denying an earlier request.
These two arguments coalesce into a single theme — but
it is a theme that gains the plaintiffs no traction. We previously
rejected the first of these arguments because a conclusion that
the City has designated the flagpole as a public forum "is
precluded by our government-speech finding." Shurtleff II, 928
F.3d at 175. As we explain below, that rationale still withstands
scrutiny — and even under traditional public-forum analysis, the
plaintiffs' asseverational array lacks force.
The government creates a public forum "only by
intentionally opening a nontraditional forum for public
discourse." Cornelius v. NAACP Legal Def. & Edu. Fund, Inc., 473
- 29 -
U.S. 788, 802 (1985). Government inaction or permission for
limited discourse cannot establish a public-forum designation.
Id. To determine if the City has converted the flagpole into a
public forum, we look to the City's "policy and practice" and also
may consider "the nature of the [flagpole] and its compatibility
with expressive activity." Id. "We will not find that a public
forum has been created in the face of clear evidence of a contrary
intent," nor will we make such a finding "when the nature of the
property is inconsistent with expressive activity." Id. at 804.
At the preliminary injunction stage, we rejected the
plaintiffs' argument that the City's "public forum[]" incantation
rendered the flagpole a public forum because the record contained
clear evidence that the City did not intend to open the flagpole
to public discourse. Shurtleff II, 928 F.3d at 176. On the
enlarged record now before us — which shows that the City over
time has approved 284 requests and has never denied any request
other than the plaintiffs' request — our conclusion remains the
same.
The record is pellucid that the City is not receptive to
any and all proposed flag designs. As we previously indicated,
the City controls which third-party flags are flown from the third
flagpole. A flag-raising is approved only after Rooney "screen[s]"
a proposed flag for "consisten[cy] with the City's message,
policies, and practices" and provides his final approval. Id.;
- 30 -
cf. Perry Educ. Ass'n v. Perry Loc. Educators' Ass'n, 460 U.S. 37,
47 (2001) (finding that school's mail system had not been
designated as a public forum when school principal had to grant
permission to access system). Furthermore, all 284 flags
previously flown were flags of countries, civic organizations, or
secular causes. That the City had not rejected prior requests is
insufficient to conclude that the City accepts any and all flags
because the record shows that the City had criteria for approval
that limited flagpole access and that all flags flown satisfied
those criteria. Cf. Cornelius, 473 U.S. at 804-05 (declining to
find designated public forum notwithstanding lack of evidence
showing how many organizations had been denied permission because
admission criteria evidenced selective access). Here, the City's
permission procedures evince selective access to the third
flagpole, and "[t]he government does not create a designated public
forum when it does no more than reserve eligibility for access to
the forum to a particular class of speakers, whose members must
then, as individuals, 'obtain permission.'" Ark. Edu. Television
Comm'n v. Forbes, 523 U.S. 666, 679 (1998). The City's
restrictions demonstrate an intent antithetic to the designation
of a public forum, and those restrictions adequately support the
conclusion that the City's flagpole is not a public forum. See
Cornelius, 473 U.S. at 803.
- 31 -
That ends this aspect of the matter. Because the City
engages in government speech when it raises a third-party flag on
the third flagpole at City Hall, that speech is not circumscribed
by the Free Speech Clause. See Walker, 576 U.S. at 215; Summum,
555 U.S. at 467. The City is therefore "entitled" to "select the
views that it wants to express." Summum, 555 U.S. at 467-68(internal citations omitted). This entitlement includes both the
right to decide not to speak at all and the right to disassociate
itself from speech of which it disapproves. See Mech v. Sch. Bd.
of Palm Beach Cnty., 806 F.3d 1070, 1074 (11th Cir. 2015); Downs
v. L.A. Unified Sch. Dist., 228 F.3d 1003, 1012 (9th Cir. 2000).
Here, the City exercised those rights by choosing not to
fly the plaintiffs' third-party flag. In the City's view, this
choice allows it more appropriately to celebrate the diversity and
varied communities within Boston. Should the citizenry object to
the City's secular-flag policy or to its ideas about diversity,
the voters may elect new officials who share their concerns. See
Summum, 555 U.S. at 468-69; Bd. of Regents of Univ. of Wisconsin
Sys. v. Southworth, 529 U.S. 217, 235 (2000); Walker, 576 U.S.
200, 207. After all, it is the electorate and the political
process that constrains the City's speech, not the Free Speech
Clause. See Summum, 555 U.S. at 468-69. Consequently, we uphold
the district court's entry of summary judgment in favor of the
- 32 -
City on all of the plaintiffs' free speech claims.3 See Shurtleff
III, 2020 WL 555248, at *6.
C. The Establishment Clause Claim.
The fact that the City is engaging in government speech
does not relieve it from the obligation to comport with the
Establishment Clause. Summum, 555 U.S. at 468. The plaintiffs
assert that the City has failed to satisfy this obligation for two
reasons. First, they assert that the City discriminated between
religion and nonreligion by excluding their proffered flag while
continuing to fly non-religious flags. Second, they assert that
the City discriminated between religions by excluding their
Christian Flag while flying flags that contain other religious
imagery. As examples, the plaintiffs cite the City's own flag,
the Turkish flag, the Portuguese flag, and the Bunker Hill flag.
The City's conduct in this regard, the plaintiffs say, is not only
discriminatory but also demonstrates hostility toward religion.
The "touchstone" for Establishment Clause claims "is the
principle that the 'First Amendment mandates governmental
3 This ruling extends, of course, to the plaintiffs'
"unbridled discretion" claim. Both the plaintiffs' articulation
of that claim and the authority that they present in support of it
presuppose the existence of a public forum. Our conclusion that
the flagpole is not a public forum therefore defenestrates the
plaintiffs' claim. See Widmar v. Vincent, 454 U.S. 263, 267-68,
267 n.5 (1981) (noting that university's constitutional obligation
to justify prior restraint on speech arises from its designation
of its campus as public forum and would not exist otherwise).
- 33 -
neutrality between religion and religion, and between religion and
nonreligion.'" McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 860
(2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968)).
The government does not act neutrally when its "ostensible object
is to take sides." Id. Accordingly, the government "cannot act
in a manner that passes judgment upon or presupposes the
illegitimacy of religious beliefs and practices." Masterpiece
Cakeshop Ltd. v. Col. Civ. Rights Comm'n, 138 S. Ct. 1719, 1731
(2018).
Starting from this baseline, we turn first to the
allegations of discrimination between religion and nonreligion.
At the outset, we take note that the plaintiffs' Establishment
Clause claim is scantily developed: they have neither identified
any evidence supporting a claim of hostility nor advanced any
serious legal argument for such a claim. The plaintiffs merely
recite the general neutrality obligation that the Establishment
Clause imposes upon the City, failing to articulate any reason why
this obligation requires the City to display their religious flag.4
The plaintiffs' sparse treatment of their Establishment
4
Clause claim suggests that this case, at its core, is not an
Establishment Clause case. This suggestion is bolstered by the
fact that the type of hostility argument conceptualized by the
plaintiffs appears to draw its essence from Supreme Court decisions
involving the Free Exercise Clause and applying the strict-
scrutiny standard. See, e.g., Trinity Lutheran Church of Columbia,
Inc. v. Comer, 137 S. Ct. 2012 (2017) (holding that exclusion of
church from otherwise available public program on account of
religious status violates Free Exercise Clause despite
- 34 -
The exclusion of religious entities from a public
program, without more, does not violate the Establishment Clause.
See Carson ex rel. O.C. v. Makin, 979 F.3d 21, 49 (1st Cir. 2020).
Nor is proof of such exclusion evidence of hostility towards
religion. See id. Here, moreover, the record does not give rise
to any suggestion that the City created the flag-raising program
with the goal of inhibiting religion. Cf. Rosenberger v. Rector
& Visitors of Univ. of Va., 515 U.S. 819, 840 (1995) (finding
governmental program to be "neutral toward religion" when
government did not "create[] it to advance religion or adopt[]
some ingenious device with the purpose of aiding a religious
cause"); McCreary, 545 U.S. at 860 (requiring proof of government
"purpose" to favor one side over the other). In fact, the City
went the extra mile: to help avoid any such impression, it offered
the plaintiffs the option of hosting an event alongside the
flagpoles so as to permit the plaintiffs to continue to practice
and share their religion (just as they would had the City granted
their flag-raising request). Under these circumstances, the
government's establishment concerns); Espinoza v. Montana Dep't of
Revenue, 140 S. Ct. 2246 (2020) (same where government excluded
school based on religious character of the school). In the case
at hand, the plaintiffs do not advance a cognizable free exercise
claim but, rather, seek the application of a concept of hostility
to religion not typically applied to Establishment Clause claims
like this one. Seen in this light, the plaintiffs' theory fits
awkwardly with precedent — an awkwardness that greatly diminishes
the force of their claim.
- 35 -
City's conduct simply cannot be construed to suggest the
disparagement of the plaintiffs' religion. Cf. Masterpiece
Cakeshop, 138 S. Ct. at 1729 (finding hostility toward religion
when government "disparage[d]" plaintiff's religion "by describing
it as despicable," "characterizing it as merely rhetorical," and
comparing it "to defenses of slavery and the Holocaust").
We add, moreover, that while the Establishment Clause
may not require a secular-flag policy, the City "may act upon [its]
legitimate concerns about excessive entanglement with religion" in
administering its flag-raising program. Eulitt ex rel. Eulitt v.
Maine, Dep't of Educ., 386 F.3d 344, 355 (1st Cir. 2004); see also
Carson ex rel. O.C., 979 F.3d at 35. The City has presented just
such a set of concerns in this case and, thus, has made a valid
choice to remain secular. Shurtleff himself described the
Christian flag as "an important symbol of our country's Judeo-
Christian heritage." Should the City honor the plaintiffs'
request, members of the audience would watch the Christian Flag
join the flags of the United States and Massachusetts in front of
the entrance of City Hall. Such a display could be deemed to
constitute a religious statement on the City's part. Cf. Am.
Jewish Cong. v. City of Chicago, 827 F.2d 120, 128 (7th Cir. 1987)
(noting that placement of religious display at city hall heightens
Establishment Clause concerns because "every display . . . is
implicitly marked with the stamp of government approval"). And
- 36 -
such a perception would underscore the realistic nature of the
City's belief that the flying of a flag would be an endorsement of
the flag's message. See Widmar v. Vincent, 454 U.S. 263, 274
(1981) (evaluating whether government policy confers "any
imprimatur of state approval on religious sects or practices").
Our government-speech finding bolsters the conclusion
that the City would be perceived to endorse the messages conveyed
by the flags that it flies. When a forum is open to all, it is
doubtful that an observer "could draw any reasonable inference of
[government] support" for a particular religion from religious
speech alone. Id. at 274, 274 n.14. In such a situation, the
City would not be seen as supporting religious goals. See id.Here, however, the City speaks for itself, one third-party flag at
a time. Because an observer would attribute the display's message
to the City, see supra Part II(B), the powerful display of a single
religion's flag (in this case, an "important symbol" of the
plaintiffs' religion) could signal the City's embrace of that
religion.
To complete the picture, it is worth noting that the
Supreme Court has explicitly distinguished the religious character
of long-standing religious monuments, symbols, and practices from
that of newly erected or adopted ones. See Am. Legion v. Am.
Humanist Assoc., 139 S. Ct. 2067, 2085 (2019). In relevant part,
the American Legion Court reasoned that, with the passage of time,
- 37 -
"religiously expressive monuments, symbols, and practices can
become embedded features of a community's landscape and identity,"
such that the community "may come to value them without necessarily
embracing their religious roots." Id. at 2084. In other words,
a display of a religious symbol, over time, can "t[ake] on an added
secular meaning." Id. at 2089. Long-standing monuments therefore
enjoy "a strong presumption of constitutionality." Id. at 2085.
This presumption does not apply, though, to the
plaintiffs' proposed religious-flag display. The City has never
before displayed such a flag and, as such, this pioneering
elevation of an "important symbol" of the Christian heritage would
come without the secular context or importance that the passage of
time may have afforded other displays. The raising of the
Christian Flag thus would threaten to communicate and endorse a
purely religious message on behalf of the City. Where that
endorsement is as widely visible and accessible as it is here, and
where the City could run the risk of repeatedly coordinating the
use of government property with hierarchs of all religions, the
City's establishment concerns are legitimate. See Lemon v.
Kurtzman, 403 U.S. 602, 615 (1971). Accordingly, we conclude that
the City's choice to refrain from endorsing a religion through the
raising of a religious flag comports with the City's constitutional
obligations.
- 38 -
This leaves the plaintiffs' claim that the City's
raising of certain flags that incorporate religious imagery while
excluding the plaintiffs' Christian Flag constitutes an
endorsement of certain religions over others and, thus, works a
violation of the Establishment Clause. "[A] flag that references
religion by using religious symbols in part of its field is not
itself a religious flag." Shurtleff II, 928 F.3d at 177. As the
plaintiffs repeatedly emphasize, Rooney does not even look at the
flag designs before granting most approvals. And when he reviewed
what an applicant described as the "Portuguese Flag," Rooney
approved it because it stands for Portugal, the country, and not
because it contained certain religious symbols. For aught that
appears, Rooney's decision to fly those country/entity flags that
include religious imagery was one without a religious dimension.
In a logical universe, then, the fact that Rooney elected to let
the Flag of Portugal fly is manifestly insufficient to establish
that the City is hostile to the plaintiffs' religion.5
The short of it is that neutrality toward religion does
not obligate the City to fly the Christian Flag on its third
flagpole. The City remains neutral where, as here, it wholly
refrains from passing judgment on religion. See McCreary, 545
5 For substantially the same reasons, Rooney's decision to
allow the hoisting of other flags incidentally containing
religious imagery (such as the Turkish flag, the Bunker Hill flag,
and the City's own flag) do not evince hostility toward religion.
- 39 -
U.S. at 876. Consequently, we hold that no violation of the
Establishment Clause occurred when the City elected not to fly the
plaintiffs' Christian Flag.
D. The Fourteenth Amendment Claim.
There is one last stop on our itinerary. The plaintiffs
submit that the City's conduct amounts to content-based
discrimination against their religious speech and, thus, violates
the Equal Protection Clause. The City counters that, because the
flagpole is not a public forum and because the plaintiffs' First
Amendment claims are futile, their equal protection claim fails as
a matter of law.
We pause to brush aside a procedural gambit. The
plaintiffs suggest that the City has waived any counter-argument
to their equal protection claim. This is magical thinking: the
City advanced the very same argument upon which it now relies at
summary judgment. No more was exigible to preserve the argument
for appellate review. See United States v. Lilly, 13 F.3d 15, 18
(1st Cir. 1994).
Turning to the merits of the claim, we start with the
familiar proposition that the Equal Protection Clause demands that
"all persons similarly situated should be treated alike." City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To
establish an equal protection claim, a plaintiff must show that
"(1) the person, compared with others similarly situated, was
- 40 -
selectively treated; and (2) that such selective treatment was
based on impermissible considerations such as race, religion,
intent to inhibit or punish the exercise of constitutional rights,
or malicious or bad faith intent to injure a person." Davis v.
Coakley, 802 F.3d 128, 132-33 (1st Cir. 2015).
What we previously have said — that the City has been
engaged in government speech not evocative of First Amendment
protections and that the flagpole is not a public forum, see supra
Part II (B) — sounds the death knell for the plaintiffs' equal
protection claim. The distinguishing feature of the speech cases
in which the Supreme Court has found violations of the Equal
Protection Clause is the existence of a public forum. See Perry
Educ. Ass'n, 460 U.S. at 55; see, e.g., Police Dep't of Chicago v.
Mosely, 408 U.S. 92, 96 (1972); Carey v. Brown, 447 U.S. 455, 461
(1980). Conversely, the Court has made nose-on-the-face plain
that "on government property that has not been made a public forum,
not all speech is equally situated, and the State may draw
distinctions which relate to the special purpose for which the
property is used." Perry Educ. Ass'n, 460 U.S. at 55. In the
absence of a public forum — and we have found none here — the
City's practice need only pass rational basis review. See id.
Put another way, the practice need only bear a rational
relationship to some legitimate governmental purpose. See id.
Here, such a purpose is evident in the celebration of Boston's
- 41 -
varied and diverse communities. Consequently, the plaintiffs'
equal protection claim fails.
III. CONCLUSION
We need go no further. Like the district court, see
Shurtleff III, 2020 WL 555248, at *6, we have taken the measure of
the plaintiffs' claims and found them wanting. Hence, the judgment
of the district court is
Affirmed.
- 42 -