Free Speech Clause; Government speech; Private speech; Designated public forum; Forum closure; Shurtleff v City of Boston; Establishment Clause; Secular purpose; Kennedy v Bremerton Sch Dist; Equal Protection Clause; Forfeiture; Summary judgment; Fed R Civ P 56(a)

[This appeal was from the ED-MI.] The court held that defendant-Hamtramck’s flagpole resolution did not violate plaintiffs’ free-speech and Establishment Clause rights, and that they forfeited their equal-protection claim. Plaintiffs, former members of the city’s Human Relations Commission (HRC), sued after the City Council limited flags on city-owned flagpoles to the American, Michigan, Hamtramck, POW, and national flags representing the City’s international character, and later removed plaintiffs from the HRC after they raised a Pride flag in defiance of the resolution. The district court granted defendants summary judgment. On appeal, the court first assumed without deciding that the flagpoles had previously been a designated public forum, but held that the City closed the forum to private speech. The resolution created a “tightly controlled, closed-list system of flag selection,” and nothing in it allowed public participation in choosing flags. Thus, the flagpoles became a forum for government speech. The court next rejected the Establishment Clause claim. Even assuming a secular-purpose inquiry survived Kennedy, plaintiffs failed to show the City’s stated purpose of reserving the flagpoles for government speech and neutrality was “a sham to advance religion.” The court reasoned one councilmember’s statement about respecting religion during an hours-long hearing and the mayor’s deposition testimony about Islam did not show the resolution’s “primary purpose was to advance religion.” Finally, the court held that plaintiffs forfeited their equal-protection claim by failing to develop it below or on appeal. Affirmed.