Judge refuses to toss The Satanic Temple's lawsuit, putting Boston's flag policy on trial

The city’s attempt to shut down the case has failed, which means allegations of religious favoritism and missing records are headed to the discovery phase

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A federal judge won’t dismiss a lawsuit alleging religious discrimination by the city of Boston against The Satanic Temple. It means the case against the city will proceed despite all their attempts to have it tossed out. It’s a completely self-inflicted wound that the city could have handled years ago, but their refusal to handle the problem responsibly has led to endless litigation.

All of this stems back to when the city allowed groups to hoist their flags outside City Hall. Normally, on the three flagpoles, the city flew the U.S. flag, the Massachusetts flag, and the Boston flag, but that last one could occasionally be replaced by a different one requested by outside groups.

The three flagpoles outside Boston City Hall (screenshot via YouTube)

In 2017, a Christian Nationalist named Harold Shurtleff asked if he could raise a Christian flag on the pole, but the city said no. A lawsuit followed and the Supreme Court unanimously ruled in 2022 that Boston had no right to exclude religious groups from the open forum they had created. (The city had to pay over $2 million in legal fees.)

The Christian flag (via Adobe Spark)

Even with that decision, though, Boston could easily have avoided the consequences if they simply closed up the forum. Officials could say they control which flags go up instead of allowing random groups to apply for the privilege. Or they could take down the third flagpole.

But what they didn’t anticipate was that a non-Christian group was ready to jump on the opportunity right after the Supreme Court’s decision came down.

One day after the SCOTUS opinion was released, The Satanic Temple applied to have its flag go up outside City Hall.

The Satanic Temple’s flag was rejected by Boston

Boston said no, saying the city had placed “on hold” all flag raisings while they decided their next steps. A couple of months later, they officially changed their flag policy to shut down the open forum. All flags on that flagpole would now represent the “official sentiments” of the city. Importantly, all other flags would have to be approved via a mayoral proclamation or council resolution.

And yet. One day after they announced that new policy, the city flew the Christian flag again, albeit for just a couple of hours. (It appeared to be a concession to the Christian group for their victory in the case.)

Making matters worse, in the years since then, the city has put up a number of third-party flags with no indication of proclamations or resolutions allowing that to happen. When The Satanic Temple made a public records request for information about those other flags, they were stonewalled for months… and eventually told no such records existed.

So here’s where the city was at:

• They rejected the Satanic flag while putting up a Christian flag.

• They had a flagpole application process on their website, which The Satanic Temple definitely filled out, yet officials claimed there were no records of any of those applications.

For those reasons, The Satanic Temple sued the city last April.

Shortly after announcing that all future flags would represent the city’s official speech, Boston raised a Christian flag. The city has not explained how this Christian flag meets the new criteria while simultaneously denying TST’s request. When TST filed a public records request to investigate the flagpole approval process, Boston claimed that no applications existed, including the one TST submitted through the city’s website. This denial is unlawful under Massachusetts law, which requires the disclosure of existing public records.

The Supreme Court clearly mandated that Boston end viewpoint discrimination in its flagpole program. However, the city disregarded this ruling and continued to exclude religious perspectives it disapproves of. The Satanic Temple’s lawsuit aims to remind Boston that compliance with constitutional law is not optional.

In May, the city attempted to have that lawsuit tossed out. They said their new flag policy was now consistent with the law, that they only flew the Christian flag as a “court-ordered remedy under the old flag-raising policy,” that brief flag-raising happened before the new policy went into effect, and that they had no public records to share because the city “did not accept applications once it shut down the old flag-flying scheme.” (They also requested that Mayor Michelle Wu be removed as a defendant because she was acting in her official capacity and it made no sense to sue both the city and her.)

The Satanists urged the court to ignore that request. They said their application was filed when the public forum existed, that denying their application violated their First Amendment rights, that raising the Christian flag as a court-ordered remedy didn’t mean they could still say no to the Satanists’ request, and that the refusal to respond to the public records request was nothing more than a “game of semantics.”

And now the court has weighed those requests and sided with the Satanists.

In a brief electronic order, U.S. District Judge Angel Kelley agreed that Wu could be dismissed as a separate defendant, but everything else went the Satanists’ way.

… the City asks the Court to consider facts not contained in TST’s complaint and, therefore, not properly raised on a Motion to Dismiss. TST plausibly alleged that, in the days following the Shurtleff opinion, raising a flag on the Boston City Flag remained public expression rather than government speech. TST also plausibly alleges that the City did not fly TST’s flag because of TST’s values or views, that the City showed a preference for the Christian group over TST, and that the City closed their flagpole to stop expression of disapproved viewpoints. Finally, TST properly alleged that the City did not provide them with documents to which they were entitled under Massachusetts’ Freedom of Information Act. Accordingly, the City’s Motion to Dismiss all claims under FRCP 12(b)(6) is DENIED.

In English, that means the lawsuit may proceed despite the city’s best efforts to neuter it. That also means the city will have to explain itself in court. In a brief statement, The Satanic Temple said “This means TST’s lawsuit now moves into the discovery phase, where the City will be required to produce documents and evidence under oath.”

“The failure, on the part of Boston, to get the case dismissed bodes well for an outcome in our favor, as we do not foresee any disputes of fact during the litigation,” TST spokesperson Lucien Greaves told Friendly Atheist, adding, “The facts are clear, unambiguous, and verifiable. The City of Boston clearly discriminated against The Satanic Temple.”

I’m still shocked that city officials keep finding themselves in the same predictable spot despite the obvious solution sitting right in front of them: Make the third flagpole fly the Boston flag and be done with it. Close the damn forum.

Instead, they still appear to be playing favorites and refusing to be transparent if that’s not the case. If Boston keeps losing these cases, it’s not because the law is unclear; it’s because officials there keep refusing to follow it.

People, religious and otherwise, should be angry about that, regardless of what they think of The Satanic Temple. While the Satanists are excluded today, it could be another minority religious group tomorrow. If the city can’t resolve this problem their elected officials created, those officials should pay a price for it in the next election. Either every group gets the same access, or no one does. Anything less is discrimination.

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