In an important First Amendment case, the U.S. Supreme Court has agreed to hear a dispute sparked by the refusal of the City of Boston, Massachusetts (City), to allow a faith-based civic organization to display the Christian flag on one of the City’s flagpoles for an event. For years, the City has sponsored a program of allowing civic organizations to display their flags at that location, but the Christian flag was the first and only one they ever prohibited.
Harold Shurtleff is the founder and director of Camp Constitution, an organization whose mission, according to its legal filing with the Supreme court, “is 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.”
In September 2017 Shurtleff desired to commemorate the annual celebration of Constitution Day by hosting an event at Boston’s City Hall Plaza, with short speeches by local clergy and the raising of the Christian flag on one of the City’s flagpoles. Shurtleff filled out an application provided by the City to request permission for the flag-raising event.
The City has three flagpoles in the plaza. The first one is for the American and the POW/MIA flags; the second is for the flag of the Commonwealth of Massachusetts; and the City’s flag is raised on the third.
However, the City has a program that allows civic groups to also fly their flags on the third pole to commemorate an event or occasion. The City explains the program on its website:
“We commemorate flags from many countries and communities at Boston City Hall Plaza during the year,” the City policy states. “We want to create an environment in the City where everyone feels included, and is treated with respect. We also want to raise awareness in Greater Boston and beyond about the many countries and cultures around the world. Our goal is to foster diversity and build and strengthen connections among Boston’s many communities.”
The City denied Shurtleff’s request, even though, as the appeal recites, “For the preceding 12 years, from June 2005 through June 2017, the City approved 284 flag raising events, with no record of a denial.”
The City’s rejection stated, “we didn’t have a past practice of allowing religious flags, and we weren’t going to allow this flag raising.”
Shurtleff filed suit against the City, alleging that its refusal to grant his application violated Camp Constitution’s free speech rights as well as the Establishment Clause of the First Amendment. A federal district court judge ruled in Boston’s favor, and the 1st U.S. Circuit Court of Appeals affirmed.
That string of losses may be about to end, however. The high court typically rejects an appeal if a majority of the justices believe the lower courts ruled correctly. When it accepts an appeal, like it did in this case, the odds are strong that the justices believe the lower courts ruled in error.
The primary issue in the appeal is going to be whether the City’s flagpole program created an “open forum” for free speech. An “open forum” is pretty much what it sounds like – a space where different viewpoints are allowed, with only minimal types of restrictions. Once the government creates such a forum, it can’t discriminate based on viewpoint. That would violate the First Amendment’s guarantee of free speech. But to discriminate because of a religious viewpoint violates not just free speech, but also the First Amendment’s Establishment Clause, which prohibits government discrimination against religion.
Shurtleff and Camp Constitution are represented by attorneys with Liberty Counsel, which issued a press release praising the Supreme Court’s announcement.
“We look forward to the U.S. Supreme Court hearing Boston’s unconstitutional discrimination against Camp Constitution’s Christian viewpoint,” Liberty Counsel Founder and Chairman Mat Staver said in the release. “The city cannot deny the Christian flag because it is ‘Christian’ and allow every other flag to fly on its flagpoles. There is a crucial difference between government endorsement of religion and private speech, which government is bound to respect. Censoring religious viewpoints in a public forum where secular viewpoints are permitted is unconstitutional and this case will set national precedent.”
Oral arguments will take place sometime after the first of the new year, with a decision expected by the end of June.
The case is Shurtleff v. City of Boston.
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