Allowing national flags and flags about historic events, causes, and organizations while refusing to raise a Christian flag outside a city hall is an unconstitutional example of government censorship, a seemingly sympathetic Supreme Court was told on Jan. 18.
The hearing came as the high court has been becoming increasingly protective of religious freedoms since conservatives gained a 6–3 majority on the bench in October 2020, when Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsburg.
The case, Shurtleff v. Boston, court file 20-1800, comes from the U.S. Court of Appeals for the 1st Circuit.
Petitioner Harold Shurtleff runs Camp Constitution, which offers classes and workshops on U.S. history and the Constitution. Camp Constitution, also a petitioner, was formed “to enhance understanding of the country’s Judeo-Christian heritage, the American heritage of courage and ingenuity, the genius of the United States Constitution, and free enterprise,” according to the petition filed with the court.
Three flagpoles adorn Boston City Hall’s entrance. Atop one flies the U.S. flag, and below it is a flag honoring missing soldiers and prisoners of war. The Massachusetts flag is on a second flagpole. A third flagpole usually flies Boston’s flag, but sometimes flags are hoisted to honor or commemorate causes, individuals, historic events, and foreign countries such as China or Turkey. Sometimes, the tertiary staff hosts flags about military battles, victims of crime, or the LGBTQ community.\
But in 2017, Boston refused to let Camp Constitution display a flag containing a Christian cross, claiming it would be a constitutionally impermissible endorsement of Christianity by the city.
The petition states that Boston official Gregory Rooney told the group the city “maintains a policy and practice of respectfully refraining from flying non-secular flags.”
Rooney said the policy was created out of concern for “the so-called separation of church and state or the Constitution’s establishment clause.” He worried that the Camp Constitution flag “was promoting a specific religion” and “didn’t think that it was in the city’s best interest to necessarily have that flag flying above City Hall.”
“His concern was not with the flag itself, but that on the application, it was called a ‘Christian flag.’ Rooney wouldn’t have been concerned if the same flag was called ‘the Camp Constitution flag’ because then ‘it would have been the flag of the organization and not a religious symbol,’” the petition states.
During oral arguments, Mat Staver, founder and chairman of the public interest law firm Liberty Counsel, spoke for the petitioners.
“After 12 years with 284 flag-raising approvals, no denials, and usually no review, one word caught the attention of a Boston official: the word ‘Christian’ on the application,” Staver told the justices.
“The flag itself was not the problem. Had it been called anything but Christian, the same flag would have flown for an hour without incident. … All applicants are welcome, except religious viewpoints.” Boston’s policy “places religion in the same category as speech deemed inappropriate, offensive, supporting prejudice or discrimination.”
Boston has been talking out of both sides of its mouth, Staver argued.
On the one hand, the city, in “an unbroken history and practice and policy,” has “expressly declared that the flagpoles are one of its public forums open to all applicants.” On the other hand, Boston claims its flagpole, a “public forum open for all applicants, is really government speech,” he said.
The city’s application form alone “cannot transform private speech into government speech,” Staver said. The lower court’s decision “upholding viewpoint discrimination under the guise of government speech is dangerous and should be reversed.”
Chief Justice John Roberts asked Staver that if the flagpole is “a government forum and this is government speech, they can certainly discriminate on the basis of viewpoint, right?”
Staver said that would be correct “if it’s government speech … but this is not government speech.”
“The city exercised no control. For 12 years, the city ministerially approved all of these applications with virtually no review.”
Staver told Justice Amy Coney Barrett that Boston “simply wanted to use government speech as a guise for censorship.”
Justice Elena Kagan asked Staver whether, if someone asked Boston to display a swastika on the flagpole, the city would have to go along with the request.
Staver replied, “If it’s a designated public forum, I think the answer is yes.”
Justice Stephen Breyer said that “anybody in his right mind” who saw a flag flying outside City Hall “would think it does have something to do with the city.”
Along the same lines, Justice Sonia Sotomayor said, “To an ordinary observer walking past City Hall, if you see a flag on the pole, you think it’s City Hall speaking.”
The Biden administration sided with the petitioners.
In a colloquy with Justice Neil Gorsuch, Department of Justice lawyer Sopan Joshi suggested fashioning a policy that would restrict the third flagpole to national flags alone.
“Obviously, government property can be used both for government speech and to create a forum, even if it’s a limited or a non-public forum,” Joshi said.
Boston could employ “a two-track approach like that,” the attorney said.
“Most of the time, it does use the flagpole for its own flags. But, if it wanted to preserve this kind of flag-raising program in which third parties could raise their flags, they could limit it, as we suggest and as Mr. Staver pointed out, to flags of countries.”
Gorsuch asked if Boston could limit the use of the flagpole “with the purpose of discriminating against religious viewpoints?”
Joshi said the city couldn’t do so because the Supreme Court has ruled “that even in a non-public forum, viewpoint discrimination is impermissible.”
The lawyer for Boston, Douglas Hallward-Driemeier, told justices the city could do what it wanted.
“Private parties are free to wave their flags on City Hall Plaza or even raise a temporary flagpole there, but they cannot commandeer the city’s flagpole to send a message the city does not endorse,” he said.
Justice Samuel Alito grilled the city’s lawyer for several minutes, saying his summary of Boston’s policy, which Alito said was “[We] will put up … the national flag of any group in the community that has roots in that country,” doesn’t appear in the flagpole-use application.
Alito said Hallward-Driemeier “reverse-engineered” a rationale for refusing the Christian flag. When Boston rejected the Christian flag, “all that Mr. Rooney said was, we will put up non-secular flags,” the justice said.