When Christians, the federal government and the American Civil Liberties Union (ACLU) all agree on the same issue, it’s worth making note of, especially when the issue is free speech involving religious symbolism. That’s what happened on January 18 in the nation’s capital when the case of Shurtleff v. Boston was argued before the U.S. Supreme Court.
The case involves whether a city government can deny a civic group – Camp Constitution – the right to raise a Christian flag at a Constitution Day commemoration after approving 284 previous requests for other flag-raising events from various groups, including flags representing Communist China, Cuba and gay pride. The city decided that the Christian nature of the flag required it to decline Camp Constitution’s request, as the city did not want to be seen as endorsing any particular religion.
Under typical First Amendment free speech principles, if a government creates a “public forum” for speech, it cannot thereafter discriminate against speakers based on the content of their speech. That includes religious speech.
However, if a particular forum is not really “public,” but restricted to only the government’s viewpoint, then the government can restrict the kinds of speech that it allows.
That’s the primary issue in the Shurtleff case. What’s amazing about the case, however, since we are talking about religious speech, is the array of allies it brought together who do not typically see eye to eye on religious issues. The ACLU, for example, filed a friend-of-the-court brief in support of Camp Constitution, while Assistant Solicitor General Sopan Joshi from the Biden administration argued to the justices that the raising of the Christian flag on city property should have been allowed under existing First Amendment principles.
Of course, Focus on the Family supports the plaintiff in the case, Camp Constitution, and its right to be free from discrimination because of the religious nature of the flag. At a rally in front of the Supreme Court in support of Camp Constitution on the day of the hearing, Focus Vice President Timothy S. Goeglein spoke in favor of the right to display the flag.
“It is fair to say that rarely if ever have Focus on the Family and the American Civil Liberties Union agreed on a major U.S. Supreme Court case,” Goeglein told the assembled crowd.
“But today, we do. We both strongly support Camp Constitution’s constitutional right to fly their flag over Boston City Hall. We believe that great city acted unconstitutionally when it singled out a Christian group from flying its flag merely because of its religious symbolism rooted in faith. Unfortunately, that is what happened in this Boston case. Cancel culture and religious freedom do not mix well in America.”
Inside the courtroom, a clash of perspectives was more evident among the justices. Questions from Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor reflected, it appeared, their belief that the government-owned flagpole would automatically convey to passersby that any flag being flown was unquestionably the city’s message and endorsement, and thus the city was allowed to pick and choose what messages they would allow on those flagpoles.
Justice Kagan, for example, asked Camp Constitution’s attorney, Matt Staver, “You’ve walked the street many times and mostly you’ve seen the City of Boston’s flag on it, but occasionally you see another flag on it. Why wouldn’t you think that this is the City of Boston deciding to put up a substitute flag for its own purposes?”
Justice Samuel Alito, however, was quick to challenge Kagan’s point and pressed Staver about the city’s past practices in order to make his own point.
Justice Alito: “Is it true that one of the flags that has been displayed on this third flagpole is the flag of the People’s Republic of China?”
Mr. Staver: “Yes, Justice Alito. In fact …”
Justice Alito: “And — and Cuba was — the Cuban flag was – was displayed?”
Mr. Staver: “Correct.”
Justice Alito: “So, I mean, it might be shocking to somebody walking down the street if they didn’t know the background to see some of these national flags flying, wouldn’t it?”
Mr. Staver: “Certainly.”
It also appeared from questioning from Justices Breyer and Kagan that the city should have settled this case with Camp Constitution and perhaps re-written its flag policy for the future to provide the city with more control over what types of flags are permitted.
“And can’t it be settled?” Breyer asked Staver. “I mean, you would have thought what’s past is past. Let’s look to the future. See what Boston wants. You might not disagree. I don’t know.”
But this case arose when the policy of the city permitted any flag, and only the Christian flag was denied. Since the city didn’t recognize its mistake, if there was one here, it’s up to the nation’s highest court to clarify the parameters of free speech for the sake of other cities around the country and lower courts who will decide future cases.
And there’s an even larger message at stake here, as Goeglein’s message on the Supreme Court’s steps reminded rallygoers.
“We are one nation under God. We are a nation rooted in the Judeo-Christian faith and tradition. Boston is a city with a remarkable religious history and tradition. The Commonwealth of Massachusetts and its constitution evoke faith and that commonwealth’s undeniable reliance on Providence. The words of that constitution arise from those beliefs.
“We at Focus on the Family are confident that the U.S. Supreme Court will recognize the constitutionality of Camp Constitution’s strong case and affirm its right to have its flag flown from the same public flag poles where other flags with other symbolism have been flown.
“In God we trust is our national motto. We trust religious liberty and freedom will be upheld in this case.”
A decision in this case is expected before the end of June.
Photo from Shutterstock.