Background
Hamtramck owns 18 flagpoles along Joseph Campau Avenue. From 2013 to 2023, the city’s Human Relations Commission maintained the poles and generally honored residents’ requests to display flags, including national flags and several non-country flags. After a resident requested a Pride flag, commission chair Russ Gordon obtained one and began displaying it in 2022.
In 2023, the City Council adopted Resolution 2023-82, limiting city-property displays to the American, Michigan, Hamtramck, and POW flags and flags of nations representing the city’s international character. Gordon and commission member Cathy Stackpoole later raised the Pride flag in defiance of the resolution. The council removed them from the commission and transferred control of the flagpoles from the commission to the city. Gordon and Stackpoole sued under the Free Speech, Establishment, and Equal Protection Clauses, and the district court granted summary judgment to the defendants.
The Court’s Holding
The Sixth Circuit affirmed. For the free-speech claim, the court assumed without deciding that the flagpoles had previously been a designated public forum. It held, however, that Resolution 2023-82 closed that forum to private speech and converted the displays into government speech. The resolution created a controlled list of permissible flags, did not authorize public participation in selecting them, and was followed by the removal of the commission’s flag-selection authority.
The court also rejected the Establishment Clause claim. Without deciding whether a secular-purpose requirement survives the Supreme Court’s abandonment of the Lemon test, the majority held that the claim failed even under the plaintiffs’ preferred framework because they had not shown that the city’s stated secular purposes were a sham masking a predominantly religious objective. Judge Thapar concurred separately on this issue, reasoning that the claim should instead be rejected under the history-based test required by current Supreme Court precedent. The panel held that the plaintiffs forfeited their equal-protection claim by failing to develop it adequately in the district court or on appeal.
Key Takeaways
- A government may close a designated public forum and reserve property for government speech by adopting and implementing a controlled selection policy that eliminates private participation.
- Hamtramck’s allowance for specified governmental and national flags did not preserve a private-speech forum because the city, not residents or the commission, controlled the selections.
- The majority and concurrence agreed that the Establishment Clause claim failed but differed over whether any secular-purpose inquiry remains viable after the Supreme Court abandoned Lemon.
Why It Matters
The decision explains how a municipality can change a flag-display program from one accommodating residents’ requests into a vehicle for government speech. A written restriction, combined with actual governmental control and the elimination of private selection, can close a previously open forum.
The opinions also expose an unresolved methodological question in Sixth Circuit Establishment Clause cases: whether older secular-purpose precedents retain any force or whether courts must rely exclusively on historical practices and understandings.