Justice Stephen Breyer wrote for the court that the city discriminated against the activist, Harold Shurtleff, because of his “religious viewpoint.”
By Mark Sherman
WASHINGTON (AP) — A unanimous Supreme Court ruled Monday that Boston violated the free speech rights of a conservative activist when it refused his request to fly a Christian flag on a flagpole outside City Hall.
Justice Stephen Breyer wrote for the court that the city discriminated against the activist, Harold Shurtleff, because of his “religious viewpoint,” even though it had routinely approved applications for the use of one of the three flagpoles outside City Hall that fly the U.S., Massachusetts, and Boston flags.
Occasionally, the city takes down its own pennant and temporarily hoists another flag. Shurtleff and his Camp Constitution wanted to fly a white banner with a red cross on a blue background in the upper left corner, called the Christian flag, to mark Constitution Day, Sept. 17, in 2017.
The city had approved 284 consecutive applications to fly flags, usually those of other nations, before it rejected Shurtleff’s because it was a Christian flag. The city said he could fly a different banner, but Shurtleff refused, and lower courts upheld the city’s decision.
But the high court said the lower courts and the city were wrong. 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, Breyer wrote.
“Finally, we look at the extent to which Boston actively controlled these flag raisings and shaped the messages the flags sent. The answer, it seems, is not at all. And that is the most salient feature of this case,” Breyer wrote in an opinion that also riffed on the brutalist architectural style of Boston’s City Hall and the Siena, Italy-inspired 7-acre plaza on which it sits.
Breyer wrote that “the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech—though nothing prevents Boston from changing its policies going forward.”
The city has said that in the event of a loss at the Supreme Court it probably will change its policy to take more control of what flags can fly.
Shurtleff is a former organizer with the John Birch Society and has used his Camp Constitution website to question the Jan. 6 insurrection at the U.S. Capitol, the outcome of the 2020 election that put President Joe Biden in office, the efficacy of COVID-19 vaccines and even who was behind the Sept. 11 attacks.
None of that was at issue at the high court.
The case, argued Jan.18, is Shurtleff v. Boston, 20-1800.
Article first published May 2, 2022
**************************************
Snippets of Justices’ opinions:
Joining the Breyer opinion were Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett.
“Because the flag-raising program did not express government speech, Boston’s refusal to let petitioners fly their flag violated the Free Speech Clause of the First Amendment, Breyer wrote in reversing and remanding the lower court order. “When the government does not speak for itself, it may not exclude private speech based on “religious viewpoint;” doing so “constitutes impermissible viewpoint discrimination.”
Kavanaugh concurred in a separate statement: “As this Court has repeatedly made clear, however, a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like. On the contrary, 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. Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class.”
Justices Samuel Alito, Clarence Thomas and Neil Gorsuch disagreed with the majority’s reasoning, although they agreed the city had violated the First Amendment. “I agree with the Court’s conclusion that Boston (hereafter City) violated the First Amendment’s guarantee of freedom of speech when it rejected Camp Constitution’s application to fly what it characterized as a “Christian flag.” But I cannot go along with the Court’s decision to analyze this case in terms of the triad of factors—history, the public’s perception of who is speaking, and the extent to which the government has exercised control over speech. As the Court now recognizes, those cases did not set forth a test that always and everywhere applies when the government claims that its actions are immune to First Amendment challenge under the government-speech doctrine. And treating those factors as a test obscures the real question in government-speech cases: whether the government is speaking instead of regulating private expression.”
Alito explained: “A program with this design cannot possibly constitute government speech. The City did nothing to indicate an intent to communicate a message. Nor did it deputize private speakers or appropriate private- party expressive content. The flags flown reflected a dizzying and contradictory array of perspectives that cannot be understood to express the message of a single speaker. For example, the City allowed parties to fly the gay pride flag, but it allowed others to fly the flag of Ethiopia, a country in which ‘homosexual act[s]’ are punishable by ‘imprisonment for not less than one year.’ Indeed, the City disclaimed virtually all messages expressed by characterizing the flagpoles as a ‘public forum’ and adopting access criteria consistent with generalized public use. The City’s policy and practice thus squarely indicate an intent to open a public forum for any private speakers who met the City’s basic criteria.”
Gorsuch, who was joined by Thomas, criticized the Supreme Court’s 1971 decision in Lemon v. Kurtzman, which outlined ways a government law or practice violates the establishment clause. “The only sure thing Lemon yielded was new business for lawyers and judges. Before Lemon, this Court had never held a flag or other similar public display to constitute an unconstitutional “establishment” of religion. … While it is easy to see how Lemon led to a strange world in which local governments have sometimes violated the First Amendment in the name of protecting it, less clear is why this state of affairs still persists. Lemon has long since been exposed as an anomaly and a mistake.”
“To justify a policy that discriminated against religion, Boston sought to drag Lemon once more from its grave. It was a strategy as risky as it was unsound. Lemon ignored the original meaning of the Establishment Clause, it disregarded mountains of precedent, and it substituted a serious constitutional inquiry with a guessing game. This Court long ago interred Lemon, and it is past time for local officials and lower courts to let it lie.”
