Religious freedom in the United States scored a huge victory Monday when the Supreme Court ruled that the city of Boston violated the First Amendment by refusing to fly a local organization’s Christian flag in front of city hall, although it had flown other groups’ flags. And the ruling wasn’t by a slim margin—it was unanimous.
The 9-0 decision in Shurtleff v. City of Boston overturned a lower court’s ruling that the rejection of Camp Constitution and its director, Harold Shurtleff, did not violate their rights to freedom of speech under the U.S. Constitution.
Boston’s flag-raising program was aimed at promoting diversity and tolerance among the city’s different communities. In turning down Camp Constitution, Boston had said that raising the cross flag could appear to violate another part of the First Amendment that bars governmental endorsement of a particular religion.
As a result of the litigation, Boston last October halted the program to ensure that the city cannot be compelled to “publicize messages antithetical to its own.” Boston has said that requiring it to open the flagpole to “all comers” could force it to raise flags promoting division or intolerance, such as a swastika or a terrorist group.
The Supreme Court, which has a 6-3 conservative majority, has taken an expansive view of religious rights and has been increasingly receptive to arguments that governments are acting with hostility toward religion.
Biden’s administration argued in court papers that because Boston treated the flagpole as a forum that private speakers could access, it had unlawfully discriminated against the Christian group based on viewpoint.
The dispute arose over Boston’s practice of allowing private groups to hold flag-raising events using one of three flagpoles on the plaza in front of City Hall. From 2005 to 2017, Boston approved all 284 applications it received before rebuffing Camp Constitution. The vast majority of flags were those of foreign countries, but also included one commemorating LGBT Pride in Boston.
At issue was whether the flagpole became a public forum meriting free speech protections under the First Amendment to bar discrimination based on viewpoint, as the plaintiffs claimed, or whether it represented merely a conduit for government speech not warranting such protection, as Boston claimed.
Camp Constitution, whose stated mission is “to enhance understanding of our Judeo-Christian moral heritage” as well as “free enterprise,” sued in 2018 over its rejection. It was represented in the case by Liberty Counsel, a conservative Christian legal group.
Among other topics, Camp Constitution’s website posts materials questioning the effectiveness of COVID-19 vaccines, claiming that last year’s U.S. Capitol attack was actually a cover up for “massive” 2020 election fraud and calling Japan’s 1941 Pearl Harbor attack and al Qaeda’s Sept. 11, 2001, attacks on the United States “carefully orchestrated false flags.”
The Boston-based 1st U.S. Circuit Court of Appeals ruled that the city’s control of the flag-raising program made it government speech. {eoa}
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