Closing a Flagpole Forum: A Closed-List Flag Resolution and Removal of Public Participation Converts a Municipal Flag Display into Government Speech

Case: Russ Gordon v. City of Hamtramck, Michigan (6th Cir. Aug. 21, 2026)
Court: United States Court of Appeals for the Sixth Circuit
Panel: Moore, White, Thapar (Thapar concurring in part and in the judgment)

1. Introduction

This case arises from a decade-long municipal flag display along Joseph Campau Avenue in Hamtramck, Michigan, where the City owned eighteen flagpoles. From 2013 to 2023, the City delegated maintenance of the poles to its Human Relations Commission (“HRC”), which followed an unwritten practice of flying “any flag which a resident of Hamtramck requested be displayed,” most often national flags reflecting residents’ heritage.

Conflict emerged when the HRC flew a Pride flag. After a change in local leadership, the City Council adopted Resolution 2023-82, restricting permissible flags to (i) American, (ii) Michigan, (iii) Hamtramck, (iv) POW, and (v) “nations’ flags that represent the international character of our City,” while prohibiting “religious, ethnic, racial, political, or sexual orientation group flags” on City property. When HRC members Russ Gordon and Cathy Stackpoole raised the Pride flag in defiance of that resolution, the City removed the flag, removed them from the HRC (Resolution 2023-99), and stripped the HRC of authority over flagpoles (Resolution 2023-100).

Gordon and Stackpoole sued the City, City Council, and Mayor Amer Ghalib, asserting claims under the Free Speech Clause, Establishment Clause, and Equal Protection Clause. The district court granted summary judgment to defendants. The Sixth Circuit affirmed, primarily on the ground that Hamtramck closed any prior forum for private expression and converted the flagpoles into a vehicle for government speech.

Key Issues

  • Free Speech: Did Resolution 2023-82 unlawfully restrict private speech on City flagpoles, or did it permissibly convert the display into government speech by closing any prior forum?
  • Establishment Clause: Was the resolution invalid because it allegedly reflected a religious purpose, and what test governs after Kennedy?
  • Equal Protection: Was the Pride flag exclusion motivated by animus toward LGBTQ+ persons, and was the claim preserved?

2. Summary of the Opinion

  1. Free Speech: Assuming (without deciding) that the flagpoles were previously a designated public forum for private speech, the court held that Resolution 2023-82 closed the flagpoles to private speech and instituted a “tightly controlled, closed-list system of flag selection.” As a result, the flagpoles became a forum for government speech, which is not constrained by the Free Speech Clause.
  2. Establishment Clause: The plaintiffs argued a “secular purpose” defect, relying on Lemon-style purpose analysis while ignoring Kennedy. The panel declined to decide whether a purpose inquiry survives Kennedy, but held the claim failed even under the plaintiffs’ preferred purpose test because the resolution’s stated neutrality rationale was not shown to be a sham and the proffered evidence invited impermissible “judicial psychoanalysis.”
  3. Equal Protection: The claim was forfeited because plaintiffs did not adequately develop it below and did not meaningfully address the district court’s forfeiture finding on appeal.

Practical holding: a municipality can avoid Shurtleff-style private-forum liability for flagpoles by adopting a closed list of permitted flags, removing public participation in selection, and exercising institutional control over the display—thereby making the display government speech.

3. Analysis

3.1 Precedents Cited

Government Speech vs. Private Speech (Flag Displays)

  • Pleasant Grove City v. Summum (555 U.S. 460 (2009))
    Established the foundational principle that the Free Speech Clause limits governmental regulation of private speech, but does not limit government speech. The court relied on this framework to treat the post-resolution flag program as government expression.
  • Walker v. Tex. Div., Sons of Confederate Veterans, Inc. (576 U.S. 200 (2015))
    Reinforced that government must be able to “say what it wishes” to function. The Sixth Circuit used this to justify municipal discretion once the flag display was recharacterized as government speech.
  • Shurtleff v. City of Boston (596 U.S. 243 (2022))
    The opinion’s central comparator. In Shurtleff, Boston’s practice of allowing outside groups to raise flags with minimal review was treated as a forum for private speech. Here, the Sixth Circuit assumed Hamtramck’s pre-2023 program might likewise have been private speech, but held Hamtramck validly changed course by adopting a closed-list resolution and removing public selection mechanisms. The court also relied on Shurtleff’s endorsement of San José’s written policy disclaiming a forum and listing approved flags as a model for government speech.

Forum Doctrine and the Power to Close a Forum

  • Perry Educ. Ass'n v. Perry Loc. Educators' Ass'n (460 U.S. 37 (1983))
    Key proposition: the government is not obliged to “indefinitely retain the open character” of a designated public forum. This underwrote the court’s willingness to treat Resolution 2023-82 as a valid “closure” even if the flagpoles had been a designated forum.
  • Satawa v. Macomb Cnty. Rd. Comm'n (689 F.3d 506 (6th Cir. 2012))
    Cited for the proposition that the government may close a designated public forum, and later in the Establishment Clause discussion for a “predominant secular purpose” formulation (though the opinion acknowledged doctrinal uncertainty after Kennedy).
  • Brindley v. City of Memphis (934 F.3d 461 (6th Cir. 2019))
    Provided the Sixth Circuit’s forum taxonomy (traditional, designated, limited, nonpublic) and the general idea that strict scrutiny ordinarily applies in a designated public forum—unless the forum has been closed.
  • Cooper-Keel v. Michigan (No. 23-1642, 2024 WL 3440019 (6th Cir. Apr. 9, 2024) (order))
    Used to illustrate that a government actor may “close” an interactive channel (there, public commenting on a court’s Facebook page) by prohibiting all comments going forward.

“Retaliatory” or Bad-Faith Forum Closure (Circuit Split Not Resolved)

  • Ridley v. Mass. Bay Transp. Auth. (390 F.3d 65 (1st Cir. 2004)) and Am. Freedom Def. Initiative v. Wash. Metro. Area Transit Auth. (901 F.3d 356 (D.C. Cir. 2018))
    Cited for the idea that closing a forum as a pretext for viewpoint discrimination may violate the First Amendment.
  • Sons of Confederate Veterans, Va. Div. v. City of Lexington (722 F.3d 224 (4th Cir. 2013)) and Satanic Temple v. City of Belle Plaine (80 F.4th 864 (8th Cir. 2023))
    Cited for the opposing position: when the government closes a forum to all private speakers (a full closure), its motives are irrelevant; no “clean-hands requirement” applies.
  • Scaer v. City of Nashua (162 F.4th 256 (1st Cir. 2025))
    A critical contrast case: Nashua claimed to have closed a “Citizen Flag Pole,” but continued to accept unsolicited applications, allow private ceremonies, permit private selection of dates, and have citizens provide/retain flags—features the First Circuit found inconsistent with government-speech closure. The Sixth Circuit treated Hamtramck’s regime as the opposite: no public participation remained, and the City stripped the HRC of control.

Establishment Clause (Post-Kennedy Uncertainty Highlighted)

  • Kennedy v. Bremerton Sch. Dist. (597 U.S. 507 (2022))
    The majority acknowledged that Kennedy declared Lemon and the endorsement test abandoned and directed courts to interpret the Establishment Clause by “historical practices and understandings.” Yet, because plaintiffs ignored Kennedy, the panel avoided definitively resolving whether any “secular purpose” requirement survives.
  • Lemon v. Kurtzman (403 U.S. 602 (1971))
    Cited primarily to explain the plaintiffs’ framing and to note doctrinal obsolescence after Kennedy.
  • McGowan v. Maryland (366 U.S. 420 (1961)) and School District of Abington Township v. Schempp (374 U.S. 203 (1963))
    Used by the majority to suggest that “secular purpose” language predates Lemon, creating uncertainty about what exactly Kennedy displaced.
  • McCreary County v. ACLU of Ky. (545 U.S. 844 (2005)) and Santa Fe Indep. Sch. Dist. v. Doe (530 U.S. 290 (2000))
    Cited for the method of assessing purpose by reference to text, legislative history, and implementation—then limited by the admonition against “judicial psychoanalysis.”
  • Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (508 U.S. 520 (1993)) and Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm'n (584 U.S. 617 (2018))
    Used to frame questions about whether and how official statements and legislative purpose can be evaluated.
  • Am. Legion v. Am. Humanist Ass'n (588 U.S. 29 (2019)) and Town of Greece v. Galloway (572 U.S. 565 (2014))
    Cited via Kennedy to show that the Court had already moved away from Lemon.
  • Thapar concurrence: relied heavily on Kennedy v. Bremerton Sch. Dist. and emphasized sister-circuit decisions (e.g., Rojas v. City of Ocala, Firewalker-Fields v. Lee, Hunter v. U.S. Dep't of Educ., Hilsenrath ex rel. C.H. v. Sch. Dist. of Chathams, Nathan v. Alamo Heights Indep. Sch. Dist.) to argue that “secular purpose” analysis has no remaining place.

Procedure/Preservation

  • Grain v. Trinity Health, Mercy Health Servs. Inc. (551 F.3d 374 (6th Cir. 2008))
    Used to hold that plaintiffs forfeited a void-for-vagueness argument by failing to raise it in the district court.
  • Alford v. Deffendoll (165 F.4th 490 (6th Cir. 2026))
    Used to support forfeiture of the Equal Protection claim due to lack of development.

3.2 Legal Reasoning

A. The court’s key move: assume the plaintiffs’ best forum theory—then hold the forum was closed

Instead of deciding whether Hamtramck’s 2013–2023 practice constituted private speech in a designated public forum (a fact-intensive, Shurtleff-guided inquiry), the Sixth Circuit assumed it did. That assumption allowed the court to focus on the dispositive question: whether Resolution 2023-82 (as implemented alongside Resolution 2023-100) closed the forum and made the display government speech.

B. What made this a “closure” rather than continued private access

The court identified the features that—taken holistically—signaled the City’s intent to speak for itself:

  • Closed list (plus a bounded category): only four specified flags and “nations’ flags” representing the City’s international character.
  • No public participation mechanism: unlike Scaer v. City of Nashua, nothing in the resolution or record suggested ongoing acceptance of unsolicited public applications, private ceremonies, date-picking, or citizen provision/ownership of flags.
  • Institutional control reasserted: the City removed the individual most identified with the prior open practice (Resolution 2023-99) and transferred “dominion, authority and control” over flagpoles to the City (Resolution 2023-100).
  • Implementation consistent with government speech: after the transfer, the City Council chose to fly only American flags “to prevent any issues in the City,” reinforcing that the City—not private speakers—was curating the message.

C. Why allowing “nations’ flags” did not keep the forum open

Plaintiffs argued that because the City still allowed various national flags—some previously requested by residents—the poles must still carry private speech. The court rejected that as a category mistake: the fact that a city chooses to fly a flag that a resident once wanted does not make the current display resident speech; it may simply reflect the city’s chosen message (here, celebration of Hamtramck’s “international character”).

D. “Retaliatory closure” avoided, not resolved

The opinion explicitly noted doctrinal uncertainty about whether closing a forum to prevent a particular viewpoint is itself unconstitutional (a split reflected by Ridley/Am. Freedom Def. Initiative versus Sons of Confederate Veterans, Va. Div. v. City of Lexington/Satanic Temple v. City of Belle Plaine). The panel declined to enter that debate because plaintiffs conceded that a government may close a nontraditional forum to all private speech and argued only that Hamtramck had not actually done so.

E. Establishment Clause: the majority’s narrow path and Thapar’s broader warning

The majority recognized that Kennedy v. Bremerton Sch. Dist. abandoned Lemon and the endorsement test, but left open whether some “secular purpose” inquiry remains binding via pre-Lemon cases (McGowan, Schempp). Without resolving that, the court held plaintiffs’ evidence failed even under the purpose-centric approach:

  • Text: the resolution was facially about neutrality and did not endorse religion.
  • Proof problem: plaintiffs’ expert report was treated as an invitation to probe subjective motives—“judicial psychoanalysis”—rather than “readily discoverable fact.”
  • Legislator remarks: a single statement about “respect[ing] the religious” during an hours-long hearing did not show the resolution’s predominant purpose was religious advancement.

Judge Thapar’s concurrence would go further: it would treat Kennedy as eliminating purpose tests altogether in Establishment Clause cases and would ask only whether the governmental action resembles a founding-era “establishment” (especially coercion and compelled religious exercise). Under that historical lens, a municipal decision about which flags the government itself will fly does not approach the Clause’s core prohibitions.

F. Equal Protection: preservation controlled

The court affirmed the district court’s conclusion that plaintiffs made “no serious effort” to defend their Equal Protection claim. On appeal, the plaintiffs’ conclusory reference to “animosity” did not identify record evidence and did not confront the forfeiture finding—so the claim was forfeited.

3.3 Impact

A. Municipal flag displays after Shurtleff: a roadmap to government speech

This decision supplies a practical blueprint for municipalities seeking to avoid creating (or continuing) a private-speech forum on government flagpoles:

  • Adopt a written, closed-list policy (or tightly bounded categories) identifying what flags may be flown.
  • Remove public application and scheduling features that signal private participation (citizen-provided flags, date selection, ceremonies, open-ended approvals).
  • Centralize control in a city office or council and implement consistent practices that reflect municipal curation.

Equally important, the opinion signals that courts will look beyond labels (“neutrality,” “not a forum”) and examine operational reality—using Scaer v. City of Nashua as the cautionary example of “closure” in name only.

B. The unresolved “retaliatory forum closure” question remains for another day

Because the panel avoided deciding whether a viewpoint-motivated closure can itself violate the First Amendment, future litigants in the Sixth Circuit may continue to press that theory—particularly where a government closes an expressive channel immediately after a disfavored message appears. This opinion narrows that battleground by emphasizing that the decisive inquiry here was whether the forum was actually closed to private speech.

C. Establishment Clause doctrine in the Sixth Circuit: friction between majority and concurrence

The split in emphasis between the majority and Judge Thapar highlights a live doctrinal tension: whether any “secular purpose” inquiry survives Kennedy. While the majority avoided a definitive ruling, the concurrence urges a categorical shift to a history-and-coercion-centered approach. That tension may shape future Establishment Clause litigation strategy (what evidence matters; whether intent evidence is relevant; whether “sham purpose” arguments remain viable).

4. Complex Concepts Simplified

Government Speech

When the government itself is the speaker—choosing and presenting a message—courts generally do not apply Free Speech Clause limits that protect private speakers. The government may select among messages (e.g., which flags it will fly) the same way it selects policies, slogans, or official symbols.

Designated Public Forum (and Closing It)

A designated public forum exists when the government intentionally opens property for public expression, making restrictions subject to the highest scrutiny. But the government is not required to keep it open forever; it may close the forum going forward (so long as it actually closes it and does not merely disguise ongoing selective access).

Holistic Inquiry Under Shurtleff

Shurtleff rejects a mechanical checklist. Courts look at context: the history of the medium, how the public would perceive who is speaking, and the degree of government control. Here, the Sixth Circuit relied heavily on control and the absence of public participation after the resolutions.

Establishment Clause After Kennedy

The Supreme Court in Kennedy instructed courts to interpret the Establishment Clause by historical practices and understandings, rather than the older Lemon “purpose/effects/entanglement” test. The majority acknowledged this shift but did not finally decide whether any “secular purpose” requirement remains binding through older precedent; the concurrence said it does not.

Forfeiture

Courts generally will not decide arguments not properly raised and developed in the trial court. Here, the plaintiffs forfeited (i) a vagueness theory by not presenting it at summary judgment and (ii) the Equal Protection claim by not developing it below or on appeal.

5. Conclusion

Russ Gordon v. City of Hamtramck, Michigan reinforces a post-Shurtleff principle of practical consequence: even if a city previously allowed broad community-driven flag displays, it may convert that practice into government speech by adopting a closed-list flag policy, eliminating public participation in selection, and reasserting municipal control over the display. Once the display is government speech, the Free Speech Clause does not require the city to host private viewpoints.

The decision also underscores two litigation realities: (1) Establishment Clause challenges must grapple with Kennedy’s historical framework (and the Sixth Circuit’s internal debate about the fate of “secular purpose” inquiry), and (2) constitutional claims rise or fall on preservation and evidentiary development, as illustrated by the forfeited vagueness and Equal Protection theories.