In a strike for the First Amendment, the Supreme Court Monday ruled that the city of Boston could not prevent a private group from flying a Christian flag on a flagpole located on government property for a commemorative event when it had allowed other private groups to fly their flags for similar occasions.
At question was whether or not a flag flying over Boston City Hall constituted government speech. In a unanimous verdict, the Court said because the city allowed many private groups to fly their flags from the flagpole and exerted very little oversight on which flags were permitted, the flags could not be deemed government speech, and the city had no right to reject a petition because it disagreed with the viewpoint of the group wanting to fly their flag.
Boston City Hall is fronted by three 83-foot-high flagpoles and a plaza frequently used for gatherings and demonstrations. From one pole flies the American flag, and from another flies the Massachusetts state flag, both without interruption. From the third pole usually flies the city flag, but for years the city has permitted groups to conduct ceremonies on the adjacent plaza and fly a flag of their choosing from that third pole during the proceedings. Most frequently the flags flown for these events have honored national holidays of the city’s many countries of origin, but on occasion flags are flown that are associated with other groups or causes. A flag was flown during Pride Week, for example, and others to honor emergency medical service workers or to celebrate a community bank. Between 2005 and 2017, the city granted permission for approximately 50 unique flags to be raised at 284 ceremonies.
It refused no petitioner until the director of Camp Constitution, Harold Shurtleff, approached the city in 2017 asking permission to fly a Christian flag — a red cross set in a blue square in the upper-left corner of an all-white background — as the group celebrated the civic and social contributions of the Christian community during an event lasting a few hours on the adjacent plaza.
Even though the city had no written policy governing the types of groups allowed to demonstrate in the plaza and fly their flags during their events, the city denied Shurtleff’s application, citing concerns that flying the Christian flag promoted a “specific religion” and would violate the Establishment Clause of the First Amendment.
Shurtleff sued, contending that the city had violated his free speech rights. The district court ruled that flying private groups’ flags from the third pole constituted government speech, so the city could reject Shurtleff’s application without violating his First Amendment rights, and the First Circuit Court of Appeals affirmed the district court decision.
The Supreme Court, by a 9–0 vote in Shurtleff v. City of Boston, reversed that. Justice Stephen Breyer, writing for the majority, said that even though flags often conveyed governmental speech, because the city in this case “allowed its flag to be lowered and other flags to be raised with some regularity,” passersby would not necessarily conclude that all the flags at city hall were speaking for the city. Moreover, the city “neither actively controlled these flag raisings nor shaped the messages the flags sent.” It had no record of denying any flag-raising requests before Shurtleff’s, and it did not have any guidelines about what flags were permitted under the program.
“All told,” Breyer said, “Boston’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads the Court to classify the third-party flag raisings as private, not government, speech.”
So, because the flag-raising program was not speech by the city, Breyer concluded, the city’s denial of Shurtleff’s request for the sole reason that the flag promoted Christianity discriminated against Shurtleff and Camp Constitution and violated the free speech clause of the First Amendment. “When the government does not speak for itself,” Breyer wrote, “it may not exclude private speech based on ‘religious viewpoint’; doing so ‘constitutes impermissible viewpoint discrimination.’”
Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett all joined Breyer’s majority decision. (READ MORE from Tom Raabe: SCOTUS Deliberates Coach’s Right to Pray After Games)
Justice Kavanaugh penned his own brief concurrence to emphasize that “a government violates the Constitution when (as here) it excludes religious persons, organizations, or speech because of religion from public programs, benefits, facilities, and the like.”
Justice Samuel Alito, in a concurrence joined by Justices Clarence Thomas and Neil Gorsuch, agreed with the Court’s decision but quibbled with Breyer’s approach. And Gorsuch wrote his own concurrence, in which he criticized the reliance of the city of Boston on Lemon v. Kurtzman, a 1971 Supreme Court decision regarding the Establishment Clause that, he said, “has long since been exposed as an anomaly or a mistake.”