Overview:

The SCOTUS is in the news for all the wrong reasons, with Boston flag case as yet another example of the erosion of the U.S. Constitution.

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The Supreme Court just ruled that the city of Boston must allow religious flags to be flown on flagpoles at city government buildings. The ruling is based on the premise that the city had created a “limited public forum” by allowing the flags of other nations or private organizations to be flown on the flagpoles, so the First Amendment free speech protections require the city also allow Christian flags to be displayed there.

Because the court found the flags were private (and not government) speech, Boston no longer has a say in which flags can be flown at city hall. This decision doesn’t change the Constitution’s requirements that the government cannot promote, favor, endorse, or sponsor religion.

This ruling could undermine church-state separation if it is abused in ways that end up favoring the dominant religious majority. But the court noted that the city could avoid that by closing the forum. The majority opinion stated that 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.” But really, what does that even mean? They ruled that it’s free speech, so how can the city “exercise discretion,” other than banning all non-government flags?

If a government permits this access to the majority religion, others are equally entitled to display their beliefs or non-belief, too. This decision is a reminder that groups representing religious minorities and nontheists must be given equal access to these kinds of public forums to display their own symbols.  Can you imagine the howls of outrage if a Satanist flag, or even one promoting Islam, were flown on that flagpole?

I am disappointed that Breyer, Kagan, and Sotomayor decided to duck on this one. Maybe they figured it wasn’t worth the effort to oppose such a trivial matter, but this may come back to haunt them in a future, less trivial case.

Americans United for Separation of Church and State (AU), joined by the National Council of Churches and 17 other religious and civil-rights organizations, filed an amicus brief in the case when it went to court last December, urging the  SCOTUS to protect religious freedom by affirming that the City of Boston should not be forced to display the Christian flag on a city hall flagpole.

This discussion came up in Jonathan MS Pearce’s interview from this last weekend of church-state separation lawyer Eddie Tabash:

The decision by the Court was unanimous, but some justices disagreed on the reasoning. The majority opinion, written by Justice Breyer, stated that the issue hinges on whether Boston’s flag-raising program is government speech or private speech. If the former, then Boston has the right to control what flags are flown. If not, then Boston has no control. The conclusion of the Court was that Boston had established a “public forum,” and had to allow any individual or organization to use it. As a legal principle, that is logical, but as a practical matter, it is laughably absurd.

If applied to other situations, like allowing a nudist colony to fly a flag promoting their facility, with an image representing their belief system, or Russia supporters proposing to fly a Russian flag, would the city of Boston be powerless to prevent that? It seems obvious that city officials should have the authority to decide what flags are “appropriate.”

The notion that once a non-government flag is allowed, then anything else is allowed is nonsensical. Any flag that is displayed on the flagpole has an implicit endorsement by the city, and they should have not only the authority, but the responsibility to ensure that its message is appropriate.

And finally, I am disappointed that Breyer, Kagan, and Sotomayor decided to duck on this one. Maybe they figured it wasn’t worth the effort to oppose such a trivial matter, but this may come back to haunt them in a future, less trivial case. Or, perhaps they are saving their ammunition for the real battle over Roe v Wade that is looming in their future.

Bert Bigelow graduated from the University of Michigan College of Engineering, then pursued a career in electronic systems and software design. He has always enjoyed writing, and since retirement, has produced short essays on many subjects. His main interests are in the areas of politics and religion, and the intersection of the two. You can contact him at bigelowbert@gmail.com.

Jonathan MS Pearce

A TIPPLING PHILOSOPHER Jonathan MS Pearce is a philosopher, author, columnist, and public speaker with an interest in writing about almost anything, from skepticism to science, politics, and morality,...