Supreme Court Unanimously Finds Boston Violated First Amendment by Barring Christian Flag From Flying at City Hall

What’s the story?

• The Supreme Court on Monday issued a unanimous decision which held that the city of Boston violated the First Amendment by denying a Christian group’s request to fly a flag at city hall as other groups had been permitted to do for their own ceremonies.

What was the case about?

• Known as Shurtleff v. City of Boston, the case concerned Boston’s practice of allowing groups to hold ceremonies on a plaza outside of city hall and raise a flag of their choosing on a flagpole in place of the city the flag. 
• From 2005 to 2017, Boston allowed about 50 unique flags to be raised in 284 such ceremonies ― many were flags of other countries, but some were associated with other groups or causes including the Pride Flag, a flag to honor emergency medical service workers, and others.
• The dispute arose when Harold Shurtleff, director of a group called Camp Constitution, requested to hold an event celebrating the civic and social contributions of the Christian community and raise what he called a “Christian flag.” 
• Boston’s property management commissioner allowed them to hold an event but told the group that they couldn’t fly the flag because he was worried the religious flag would violate the Establishment Clause ― which precludes the government from establishing a religion, interfering with a religious group’s clergy or doctrine, extending benefits to certain religious entities but not others, or allowing religious bodies to exercise governmental power.
• That prompted a lawsuit by Shurtleff, and while federal court rulings at the district and circuit level both went in favor of Boston, those decisions were appealed to the Supreme Court.

What did the justices say?

• The Supreme Court unanimously held that Boston’s flag-raising program wasn’t an expression of government speech and therefore the city’s refusal to let the petitioners fly their Christian flag at the plaza was a violation of the First Amendment’s Free Speech Clause.
• The Court’s unanimous opinion in favor of Shurtleff was written by Justice Stephen Breyer, who is retiring at the end of this term and will be succeeded by his former clerk, Judge Ketanji Brown Jackson. Breyer wrote in conclusion:

“When a government does not speak for itself, it may not exclude speech based on “religious viewpoint”; 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. 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.

For the foregoing reasons, we conclude that Boston’s flag-raising program does not express government speech. As a result, the city’s refusal to let Shurtleff and Camp Constitution fly their flag based on its religious viewpoint violated the Free Speech Clause of the First Amendment. We reverse the First Circuit’s contrary judgment and remand the case for further proceedings consistent with this opinion.”

• Aside from Breyer’s majority opinion, concurring opinions were filed by Justice Samuel Alito (joined by Justice Clarence Thomas and Justice Neil Gorsuch), Justice Gorsuch (joined by Justice Thomas), and Justice Brett Kavanaugh.

— Eric Revell

(Photo Credit: andrewjsan via Flickr / Creative Commons)