In a unanimous decision, the U.S. Supreme Court declared a victory for free speech by ruling that in 2017, the City of Boston’s refusal to allow a civic group called Camp Constitution, and its director, Harold Shurtleff, to fly a Christian flag at its event held on city property constituted viewpoint discrimination.
In so doing, the court reversed a decision from the 1st U.S. Circuit Court of Appeals in Boston’s favor.
The court’s decision was written by soon-retiring Justice Stephen Breyer, who noted that Boston’s program of allowing civic groups to fly flags of their choosing at events and rallies held on a certain piece of city property had never included a single rejection of a flag until the request to fly the Christian flag.
The main issue in the case, according to Breyer, was whether the city’s program of allowing flags to be flown amounted to “government speech” or private speech. If the message is the government’s, then under previous Supreme Court precedents the government can control what is said.
However, if the city’s program could be considered a public forum for the expression of private viewpoints, then denying Camp Constitution the opportunity to fly the Christian flag because of its “Christian” message violated the government’s duty to remain neutral.
“We conclude that, on balance, Boston did not make the raising and flying of private groups’ flags a form of government speech,” Breyer wrote. “That means, in turn, that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint ‘abridg[ed]’ their ‘freedom of speech.’”
The public plaza in question sits in front of City Hall and has three flagpoles. The U.S. flag is raised on one, the state flag on the second, and the city flag – and sometimes a civic group’s flag – are raised on the third.
The facts in the case never looked good for the city, even though it managed to win its argument in two lower federal courts. The justices, however, cut to the heart of matter by pointing to the sole rejection of the Christian flag after years of allowing every other requested flag to fly.
“All told, between 2005 and 2017, Boston approved about 50 unique flags, raised at 284 ceremonies. Boston has no record of refusing a request before the events that gave rise to this case,” Breyer noted.
You don’t have to be a lawyer to recognize religious discrimination on the part of the city in this case. But in the city’s defense, its position is a result of ignorance of the First Amendment rather than hostility to Christianity.
“The commissioner [of Boston’s Property Management Department] worried that flying a religious flag at City Hall could violate the Constitution’s Establishment Clause and found no record of Boston ever having raised such a flag,” the decision reads. “He told Shurtleff that Camp Constitution could proceed with the event if they would raise a different flag. Needless to say, they did not want to do so.”
Boston’s mistake is a common one that many state and local governments and public institutions commit. For decades, they have been warned by secular watchdog groups that the government, in order to avoid Establishment Clause problems, sometimes called the “separation of church and state,” must prohibit religious message while allowing other messages.
But that is blatant “viewpoint discrimination” prohibited by the Free Speech clause of the First Amendment. And Boston’s ignorance of basic American law resulted in hostility toward Christianity because they bought into leftist talking points rather than taking the time to understand actual First Amendment law.
“Here, Boston concedes that it denied Shurtleff ’s request solely because the Christian flag he asked to raise ‘promot[ed] a specific religion,’ Breyer wrote. “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.”
Justices Brett Kavanaugh, Samuel Alito and Neil Gorsuch wrote separate concurring opinions emphasizing different aspects of the court’s free speech jurisprudence.
Camp Constitution and Harold Shurtleff are represented in the case by Liberty Counsel.
“This 9-0 decision from the Supreme Court strikes a victory for private speech in a public forum,” Liberty Counsel’s Founder and Chairman Mat Staver said in a press release. This case is so much more significant than a flag. Boston openly discriminated against viewpoints it disfavored when it opened the flagpoles to all applicants and then excluded Christian viewpoints. Government cannot censor religious viewpoints under the guise of government speech.”
The case now goes back to the lower courts with instructions to enter judgment in Camp Constitution’s favor.
The case is Shurtleff v. Boston.
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