Read before you let your freak flag fly

As a student of First Amendment litigation, and in keeping with last month's national holiday, I am following three recent legal cases involving flags.

The first two -- Little v. L.A. County Fire Department and Feldman v. Denver Public Schools -- are pending in federal courts. Both fall into the category of "my protected class trumps your protected class" cases, i.e., disputes involving Christians' rights versus gay rights. The third case, Shurtleff v City of Boston, resulted in a May 2022 decision by the United States Supreme Court in which the petitioner (another Christian) overcame an Establishment Clause defense to his request to raise a Christian flag.

The allegations in Little are as follows: In March of 2023, the LA County Board of Supervisors ordered Progress Pride flags flown throughout all County facilities during the month of June, which the Board designated as Pride Month. The L.A. County Fire Department allegedly threatened a 22-year employee, Christian lifeguard Captain Jeffrey Little, with dismissal after he took down the rainbow-colored flags hanging near his station in Will Rogers Beach in the Pacific Palisades. Little had allegedly sought and been denied a religious accommodation. Since 1997, the Thomas More Society, a conservative Roman Catholic public-interest law firm, has brought culture war suits throughout the U.S. on behalf of religious plaintiffs (individuals and groups) in addition to filing numerous amicus briefs. In May 2024, the Society filed a complaint on behalf of Little against his employer in May 2024 in the U.S. District Court, Central District of California. Little alleges employment discrimination and retaliation under state and federal law based on his deeply held religious beliefs. He seeks damages for severe emotional distress and a "standing exemption" from working near a Pride flag. Interestingly, he asks the court to order his managers to complete workplace diversity classes sponsored by the EEOC including, inter alia, "Creating an Inclusive Workplace," and "Harassment and Diversity: Respecting Differences."

The allegations in Feldman are somewhat similar. Parent Nathan Feldman allegedly sought the right to display a "straight pride" flag at his twins' Denver K-8 school because he was dissatisfied with the defendants' alleged practice of "teaching second-grade students about the topic of sex including sexual orientation and gender identity," and of allowing teachers to display rainbow flags, which the principal allegedly advised were consistent with the district's policy supporting "the right of its employees to put rainbow flags or other signs of support for LGBTQIA+ students and staff." In November 2023, Feldman sued the Denver Public Schools on behalf of himself and his children in the U.S. District Court, District of Colorado after he was allegedly denied permission to raise his "straight pride" flag. The complaint alleges that the defendants violated Feldman and his twins' constitutional rights under the First and Fourteenth Amendments. In addition, the complaint alleges the defendants violated Title IX of the federal Civil Rights Act, citing by analogy the landmark 2020 U.S. Supreme Court ruling in Bostock v Clayton County, which was an employment case. In Bostock, the Court ruled that "[d]iscrimination on the basis of 'sex' extends to gender identity and sexual orientation," broadening the interpretation of Title VII of the federal Civil Rights Act to include protections for LGBTQ employees, which previously were afforded to such employees according to laws enacted in only about half the states. The plaintiffs' theory is that the school discriminated against them based on their membership in a protected class, i.e., straight /cisgender. The complaint seeks $3 million in damages.

The third recent flag dispute represents another nail in the coffin for the three-part Lemon test that courts have applied for decades in disputes involving the Establishment Clause prohibition against government establishing an official religion. The test, however, has fallen increasingly out of favor. In the 2022 case of Shurtleff v City of Boston, for example, the U.S. Supreme Court rejected a defendant municipality's argument that the Establishment Clause justified its policy allowing some groups, but not religious groups to have their flags temporarily flown outside of Boston City Hall through an informal permit process. After losing in both the district court and the First Circuit, Hal Schurtleff, the director of a Christian group, Camp Constitution, obtained certiorari. In a rare unanimous decision, the Court ruled that the City violated the group's First Amended rights when it denied the group's request to raise their flag. The Christian legal firm that represented Shurtleff was awarded $2.1 million as reimbursement for its attorney fees and costs incurred in the five years of litigation. Just two months after deciding Shurtleff, the Supreme Court all but abrogated the Lemon test in Kennedy v. Bremerton School District, in which the Court's religious majority vindicated a Washinton-state public high school assistant football coach after the school suspended him for leading prayers at the 50-yard line after football games.

Enter another actor who is no stranger to Establishment Clause challenges. The Satanic Temple, founded in Salem, Massachusetts and recognized by the IRS as an official House of Worship since 2019, has brought numerous cases across the country advocating for the separation of church and state. Shortly after Schurtleff was published, Boston City Hall acquiesced and allowed Camp Constitution to fly its Christian flag. Predictably, the Satanic Temple applied to have one of its flags raised in the same location. The City, however, amended its rules, thus avoiding a skirmish with the Satanic Temple or any other future applicant. The rules, as amended August 2022, now state that-- rather than through an application procedure-- a City Council resolution or mayoral proclamation is required for a flag to be raised, consistent with the Supreme Court's implication that the City needed to clarify that the process of raising flags at City Hall is unambiguously government -- and not private -- speech.