The Supreme Court ruled today that Boston officials violated a man’s free speech rights when it refused to erect his Christian flag outside City Hall. It was a unanimous decision from the mostly conservative Court, and the only silver lining here may be that the decision comes with rather simple solutions.
Harold Shurtleff and his Christian flag
Harold Shurtleff is the director and co-founder of Camp Constitution, a non-profit group that promotes Christian nationalism. In 2017, Shurtleff applied for a permit to raise a Christian flag on a pole outside City Hall Plaza to commemorate “Constitution Day and Citizenship Day,” but the city of Boston rejected the request.
Shurtleff contended this was religious discrimination, even if the same rules prohibited atheists, Muslims, and Satanic from requesting their own flags get raised. He said there were plenty of other flags with religious symbols that the city put up, including the national flag for Portugal during the city’s Portuguese-American festival. The city even acknowledged the significance of that symbol on its website at the time, he said. Plus, the city flag for Boston includes a Latin phrase that translates to “God be with us as he was with our fathers.”
Religion itself wasn’t the problem, he argued, so why weren’t they letting him hoist a Christian flag when he went through all the proper motions?
Officials told him non-secular flags weren’t allowed on the city’s flagpole. They also implied that an explicitly Christian flag was different from a national or local flag that happened to have a religious symbol on it. Shurtleff wasn’t buying it, so he filed a lawsuit in 2018 claiming this was a violation of his constitutional rights.
He didn’t get very far with that one. That year, U.S. District Court Judge Denise J. Casper denied him a preliminary injunction. And in 2020, she officially rejected his challenge. In short, she said that Boston had every right to reject his Christian flag.
… There are no additional facts in the record that would suggest any improper preference for non-religion over religion or selective treatment of any person or group based on religion. The City did not alter its procedures for review of flag applications because of Camp Constitution’s request, instead Camp Constitution’s request presented a novel issue for the City’s consideration, which the City considered consistent with its practice and policy.
What about the argument that it was hypocritical to say no to a Christian flag while saying “yes” to a national flag with a Christian symbol? There’s no hypocrisy at all, the judge said.
All of these flags, although they contained religious imagery, are secular flags of sovereign nations… Permitting such flags to be flown also allowed for the City’s purpose of “commemorate[ing] flags from many countries and communities” and is not similar to the Christian flag proposed to be flown by Shurtleff, which was a religious flag… The Court is not convinced that flags of countries or secular organizations and entities that contain religious references or imagery are the same as the Christian flag that Shurtleff sought to fly from the City’s flagpole, which nobody disputes is a non-secular flag.
Simply put, unless the city was allowing other religious (or atheist) groups to put up their own flags in promotion of their beliefs, Christians didn’t have a special right to do the same. And the city had good reason to say no to faith-based (or atheist) flags altogether.
The Supreme Court took up this “Christian flag” case
Shurtleff appealed the decision, and in 2020, a coalition of 18 groups, including Americans United for Separation of Church and State and the American Humanist Association (AHA), urged the Court to uphold the earlier decision in an amicus brief. Their plea rested on two basic arguments: The original decision was consistent with our understanding of the Establishment Clause, and Boston’s policy denying religious flags was good for religious freedom:
As our Nation becomes increasingly pluralistic, the need to uphold the separation between government and religion is more important than ever. Boston’s policy here not to display religious flags in front of City Hall respects the diverse faiths of all city residents, in keeping with the First Amendment and the fundamental freedoms that it safeguards. This Court should therefore reject any invitation to forsake our Nation’s “profound commitment to religious liberty”… and should instead respect the City’s decision to reaffirm the founding principles and essential protections for religious freedom that have served this country and all its people so well for so long. … The City of Boston is bound to respect the religious beliefs of all its citizens. By declining Shurtleff’s demand that it display a religious symbol, the City did just that: It properly refrained from aligning itself with any particular religion, thus remaining true to our national heritage and deep commitment to religious freedom.
That argument worked. Last year, the First Circuit Court of Appeals upheld the earlier decision in support of church/state separation and against the raising of a Christian flag.
Boston is “entitled to select the views that it wants to express,” U.S. Circuit Judge Bruce Selya wrote for a three-judge panel. And the refusal to fly the flag “simply cannot be construed to suggest the disparagement of the plaintiffs’ religion,” the 86-year-old Reagan appointee added. … “Although the plaintiffs might perhaps make the case that a lone Christian flag, nowhere near City Hall, would be seen as devoid of any connection to a government entity, a City Hall display that places such a flag next to the flag of the United States and the flag of the commonwealth of Massachusetts communicates a far different message.”
The other two judges, both Clinton appointees, signed onto that decision. But knowing that their side would get a favorable hearing in front of this particular Supreme Court, that decision was appealed to the very top. It was a bad sign when they agreed to take this non-controversial case because the writing on the wall has been that religious groups can get away with just about anything no matter how irrational it may be.
To put that another way, if the Supreme Court allowed a Giant Christian Cross to remain up on government property, and it’s only gotten more conservative since then, they were almost certainly going to say religious speech couldn’t be prohibited in this particular manner. The only question was how far the Court would stretch that privilege. (And how soon Satanists would apply to put up their own flag.)
The Supreme Court said Boston went too far
Today, the Supreme Court did exactly what we all feared: They decided in favor of the Christian nationalist.
The ruling, written by Justice Stephen Breyer on behalf of a unanimous Court, argued that if various groups are allowed to request their flags be raised outside City Hall, religious groups can’t be excluded from the mix. This is not government speech, the judges argued, and even though that was the fear that led to the city saying no to the Christian flag, the evidence supporting that idea that people might be confused by the gesture was “thin.”
Breyer noted that Boston could’ve helped itself by imitating the flag-flying policies of other cities:
Boston could easily have done more to make clear it wished to speak for itself by raising flags. Other cities’ flag-flying policies support our conclusion. The City of San Jose, California, for example, provides in writing that its “‘flagpoles are not intended to serve as a forum for free expression by the public,’” and lists approved flags that may be flown “‘as an expression of the City’s official sentiments.’”
All told, while the historical practice of flag flying at government buildings favors Boston, the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech—though nothing prevents Boston from changing its policies going forward.
In other words, Boston created this problem but Boston can easily fix this problem.
Justice Brett Kavanaugh, in a separate concurrence, added that this problem only arose “because of a government official’s mistaken understanding of the Establishment Clause.” In an effort to maintain church/state separation, that official said no to the Christian flag. That was unnecessary overreach, Kavanaugh argued. If secular groups (like banks) could apply to hoist a flag without a problem, religious groups can’t be shut out of the mix. Justice Samuel Alito, in a separate concurrence joined by Clarence Thomas and Neil Gorsuch, argued that the majority’s analysis was flawed but came to the right conclusion.
Gorsuch’s own concurrence, joined by Thomas, argued that church/state separation precedence ought to be tossed out altogether. He called out the famous Lemon Test which says all legislation involving religion must have a secular purpose, must neither advance nor inhibit religion, and must avoid “excessive government entanglement.” Those are sensible rules, and that’s what the city of Boston used to justify their rejection of the Christian flag. Gorsuch, however, says we should get rid of that test completely.
Ultimately, Lemon devolved into a kind of children’s game. Start with a Christmas scene, a menorah, or a flag. Then pick your own “reasonable observer” avatar. In this game, the avatar’s default settings are lazy, uninformed about history, and not particularly inclined to legal research. His default mood is irritable. To play, expose your avatar to the display and ask for his reaction. How does he feel about it? Mind you: Don’t ask him whether the proposed display actually amounts to an establishment of religion. Just ask him if he feels it “endorses” religion. If so, game over.
To justify a policy that discriminated against religion, Boston sought to drag Lemon once more from its grave. It was a strategy as risky as it was unsound. Lemon ignored the original meaning of the Establishment Clause, it disregarded mountains of precedent, and it substituted a serious constitutional inquiry with a guessing game. This Court long ago interred Lemon, and it is past time for local officials and lower courts to let it lie.
It’s deeply ironic that Gorsuch condemns the idea that someone might feel a religious display conveys government endorsement of that religion… when the Court’s conservatives routinely give that sort of leeway to religious plaintiffs who feel that things like wearing masks or signing health insurance exemptions violate their religious beliefs no matter how insane or loose those connections may be.
The reaction and the aftermath
Americans United, while disappointed with the decision, noted that nothing has changed about the fact that the government still can’t “promote, favor, endorse or sponsor religion.” They also noted that there are easy fixes to this particular problem:
Nevertheless, this ruling could undermine church-state separation if it is abused in ways that end up favoring the dominant religious majority. But governments might avoid that by closing the forum at any time, as the court noted. Additionally, the flags flying above city hall would have been government speech if Boston had stated so in a policy or exercised more discretion in deciding which flags to display. Other governments might take that path.
Basically, everything could be worse. Boston now needs to do its job by changing its policies or getting rid of the third flag outside City Hall. And they better get working on that quickly. Not just because Satanists may now apply to raise their flag, but actual awful groups may jump into the mix. What’s stopping a white supremacist group from making the same request? Unless Boston changes its flag rules, they won’t be able to say no.
That’s what American Atheists is also worried about:
“The worst was averted: the Establishment Clause was not further undermined,” said Alison Gill, Vice President for Legal and Policy. “However, Shurtleff v. Boston lowers the standard for a public forum. From now on, governments must be careful about how they use their flagpoles. Otherwise, this tool for government communication may be controlled by outside parties,” she warned.
“With this decision, the Supreme Court is heating up the culture wars and creating unnecessary division,” said Nick Fish, president of American Atheists. “Once Boston raises the Christian flag, other religious organizations will rush into the mêlée and force Boston to raise their own flags—giving the impression that this is government speech. It didn’t have to be this way.”
AA notes that, without intervention, there’s nothing stopping the KKK (or “other extremist religious groups”) from requesting their own flag go up outside the building.
Thankfully, the city says it plans to address the matter soon:
The city has said that in the event of a loss at the Supreme Court it probably will change its policy to take more control of what flags can fly.
It would be quite anti-climactic if, after years of fighting to raise his hate group’s flag outside Boston’s City Hall, and winning a Supreme Court case to make it happen, Boston officials simply changed the rules to either take charge of all flags outside the building to make sure they complied with certain rules or got rid of the “public forum” altogether. It would be the right move.
A years-long battle to promote Christianity using the government could end, not with a Supreme Court ruling, but with a revised policy that gets approved within minutes at the next city council meeting. That would be the best possible outcome from this point forward.