Supreme Court Rules Boston Unlawfully Refused to Fly Christian Flag
WASHINGTON — A unanimous Supreme Court ruled Monday that Boston violated the free speech rights of a conservative activist by refusing to comply with his request to fly a Christian flag on a flagpole outside City Hall, while allowing other organizations to fly theirs.
The underlying case stems from a 2017 decision by the city’s commissioner of property management who declined to raise the flag fearing such an action would violate the establishment clause of the U.S. Constitution.
Boston regularly flies an American flag on one of three flagpoles that stand outside City Hall, and flies the flag of the Commonwealth of Massachusetts next to it on a second flagpole.
A third flag has long been home to the city of Boston’s own flag, but at least since 2005, it has also approved the raising of about 50 unique flags on 284 separate occasions to honor the ancestral homes of Boston residents or specific groups and causes, such as a pride flag or emergency medical service workers, and even a community bank.
In 2017, Harold Shurtleff, the director of an organization called Camp Constitution, asked to hold an event on the plaza to celebrate the civic and social contributions of the Christian community to the city, and as part of that ceremony, he wanted to raise what he described as the “Christian flag.”
After the city told Shurtleff he could hold the event but could not raise his flag, he and Camp Constitution sued, claiming the city’s refusal to allow the flag to fly outside City Hall violated the First Amendment’s free speech clause.
A federal district court held that flying private groups’ flags from City Hall’s third flagpole amounted to government speech, so Boston could refuse Shurtleff’s request without running afoul of the First Amendment. The 1st U.S. Circuit Court of Appeals affirmed.
But retiring Justice Stephen Breyer, writing for the court, held the city discriminated against Shurtleff because of his “religious viewpoint” even though it had routinely approved the applications of others wishing to use the flagpole.
Breyer said the case hinged on whether the flag-flying is an act of the government, in which case Boston can do whatever it wants, or private parties like Shurtleff.
“Boston could easily have done more to make clear it wished to speak for itself by raising flags. Other cities’ flag flying policies support our conclusion,” Breyer wrote. “The city of San Jose, California, for example, provides in writing that its ‘flagpoles are not intended to serve as a forum for free expression by the public,’” and lists approved flags that may be flown “‘as an expression of the city’s official sentiments.'”
“When a government does not speak for itself, it may not exclude speech based on ‘religious viewpoint,’” Breyer wrote, adding that “doing so ‘constitutes impermissible viewpoint discrimination.’
“Applying that rule, we have held, for example, that a public university may not bar student-activity funds from reimbursing only religious groups,” he continued. “Here, Boston concedes that it denied Shurtleff’s request solely because the Christian flag he asked to raise ‘promot[ed] a specific religion.’ … Under our precedents, and in view of our government-speech holding here, that refusal discriminated based on religious viewpoint and violated the free speech clause.”
A number of justices wrote concurring opinions.
Justice Brett Kavanaugh’s concurring opinion — just one page — said he agreed with the decision, but wanted to emphasize the government “may not treat religious persons, religious organizations, or religious speech as second-class.”
Justice Samuel Alito Jr.’s concurring opinion said he agreed with the result but not with the test the court applied to get there. The real question in government speech cases, he said, is whether the government is speaking instead of regulating private expression.
Meanwhile, Justice Neil Gorsuch’s concurring opinion focuses on Boston’s explanation that it thought allowing the petitioner in this case to fly his group’s Christian flag would violate the Constitution’s establishment clause.
“The real problem in this case doesn’t stem from Boston’s mistake about the scope of the government speech doctrine nor its error in applying our public forum precedent,” Gorsuch wrote. “The trouble here runs deeper than that.
“Boston candidly admits that it refused to fly the petitioners’ flag while allowing a secular group to fly a strikingly similar banner. And the city admits it did so for one reason and one reason only: It thought displaying the petitioners’ flag would violate ‘the Constitution’s establishment clause.’
“That decision led directly to this lawsuit, all the years of litigation that followed, and the city’s loss today,” Gorsuch continued. “Not a single member of the court seeks to defend Boston’s view that a municipal policy allowing all groups to fly their flags, secular and religious alike, would offend the establishment clause.
“How did the city get it so wrong? To be fair, at least some of the blame belongs here and traces back to [the 1971 case] Lemon v. Kurtzman, 403 U.S. 602 (1971). Issued during a ‘bygone era’ when this court took a more freewheeling approach to interpreting legal texts … Lemon sought to devise a one-size-fits-all test for resolving establishment clause disputes. That project bypassed any inquiry into the clause’s original meaning. It ignored long-standing precedents. And instead of bringing clarity to the area, Lemon produced only chaos,” Gorusch said. “In time, this court came to recognize these problems, abandoned Lemon, and returned to a more humble jurisprudence centered on the Constitution’s original meaning. Yet in this case, the city chose to follow Lemon anyway. It proved a costly decision, and Boston’s travails supply a cautionary tale for other localities and lower courts.”
As is often the case in a Breyer opinion, the author veers off in a tangent that brings a smile to the reader.
At one point in the current opinion, he explains, “The First Amendment’s free speech clause does not prevent the government from declining to express a view. … When the government wishes to state an opinion, to speak for the community, to formulate policies or to implement programs, it naturally chooses what to say and what not to say.
“That must be true for the government to work. Boston could not easily congratulate the Red Sox on a victory were the city powerless to decline to simultaneously transmit the views of disappointed Yankees fans. The Constitution therefore relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks.”
At another point, Breyer takes on the mantle of architecture critic.
“The flagpole at issue stands at the entrance of Boston City Hall. Built in the late 1960s, Boston City Hall is a raw concrete structure, an example of the brutalist style. Critics of the day heralded it as a public building that ‘articulates its functions’ with ‘strength, dignity, grace and even glamor,’” Breyer writes, citing J. Conti, “A New City Hall: Boston’s Boost for Urban Renewal,” Wall Street Journal, Feb. 12, 1969, p. 14.
He then notes the “building’s design has since proved somewhat more controversial,” tipping his figurative hat to E. Mason, “Boston City Hall Named World’s Ugliest Building,” Boston Herald, Nov. 15, 2008.
“More to the point, Boston City Hall sits on City Hall Plaza, a seven-acre expanse paved with New England brick. Inspired by open public spaces like the Piazza del Campo in Siena, Tuscany, Italy, the plaza was designed to be ‘Boston’s fairground,’ a ‘public gathering spac[e]’ for the people,” he says, bringing a close to the paragraph.
As of Monday, a rough count suggests there are 36 rulings from the Supreme Court and just nine weeks until the end of its current session.
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