Supreme Court 9–0: Boston May Not Discriminate Against Christian Group

The SCOTUS unanimously ruled today, in Shurtleff v. City of Boston, that the City of Boston’s decision to exclude the “Camp Constitution” organization from a public flagpole, available to other groups, violated the Constitution of the United States. As Justice Kavanaugh explained, “This dispute arose only because of a government official’s mistaken understanding of the Establishment Clause.”

The court explains:

three flagpoles. Boston flies the American flag from the first pole and the flag of the Commonwealth of Massachusetts from the second. Bos- ton usually flies the city’s own flag from the third pole. But Boston has, for years, allowed groups to hold ceremonies on the plaza during which participants may hoist a flag of their choosing on the third pole in place of the city’s flag. Between 2005 and 2017, Boston approved the raising of about 50 unique flags for 284 such ceremonies. Most of these flags were other countries’, but some were associated with groups or causes, such as the Pride Flag, a banner honoring emergency medical service workers, and others. In 2017, Harold Shurtleff, the director of an organization called Camp Constitution, asked to hold an event on the plaza to celebrate the civic and social contributions of the Christian community; as part of that ceremony, he wished to raise what he described as the “Christian flag.” The commissioner of Bos- ton’s Property Management Department worried that flying a reli- gious flag at City Hall could violate the Establishment Clause and found no past instance of the city’s having raised such a flag. He there- fore told Shurtleff that the group could hold an event on the plaza but could not raise their flag during it.

The court held:

(a) The Free Speech Clause does not prevent the government from declining to express a view. See Pleasant Grove City v. Summum, 555 U. S. 460, 467–469. The government must be able to decide what to say and what not to say when it states an opinion, speaks for the com- munity, formulates policies, or implements programs. The boundary between government speech and private expression can blur when, as here, the government invites the people to participate in a program. In those situations, the Court conducts a holistic inquiry to determine whether the government intends to speak for itself or, rather, to regulate private expression. The Court’s cases have looked to several types of evidence to guide the analysis, including: the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression. See Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. 200, 209–213. Considering these indicia in Summum, the Court held that the messages of permanent monuments in a public park constituted government speech, even when the monuments were privately funded and donated. See 555 U. S., at 470–473. In Walker, the Court found that license plate designs proposed by private groups also amounted to government speech because, among other reasons, the State that issued the plates “maintain[ed] direct control over the messages conveyed” by “actively” reviewing designs and rejecting over a dozen proposals. 576 U. S., at 213. On the other hand, in Matal v. Tam, the Court concluded that trademarking words or symbols generated by private registrants did not amount to government speech because the Patent and Trade- mark Office did not exercise sufficient control over the nature and con- tent of those marks to convey a governmental message. 582 U. S.___, ___. Pp. 5–6.

…But the key issue is whether Boston shaped or controlled the flags’ content and meaning; such evidence would tend to show that Boston intended to convey the flags’ messages as its own. And on that issue, Boston’s record is thin. Boston says that all (or at least most) of the 50 unique flags it approved reflect particular city-endorsed values or causes. That may well be true of flying other nations’ flags, or the Pride Flag raised annually to commemorate Boston Pride Week, but the connec- tion to other flag-raising ceremonies, such as one held by a community bank, is more difficult to discern. Further, Boston told the public that it sought “to accommodate all applicants” who wished to hold events at Boston’s “public forums,” including on City Hall Plaza. App. to Pet. for Cert. 137a. The city’s application form asked only for contact information and a brief description of the event, with proposed dates and times. The city employee who handled applications testified that he did not request to see flags before the events. Indeed, the city’s prac- tice was to approve flag raisings without exception—that is, until petitioners’ request.

Writing for the Court Justice Breyer specifically notes that the flag was rejected by the City of Boston because of its viewpoint:

The commissioner of Boston’s Property Management De- partment said no. The problem was “not the content of the Christian flag,” but “the fact that it was the Christian flag or [was] called the Christian flag.” App. in No. 20–1158 (CA1), at 212–213 (deposition of then-commissioner Greg- ory T. Rooney, hereafter Rooney deposition). The commissioner 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. 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.

Had the government been “speaking for itself,” they could have excluded the flag but they were not. Breyer articulates the rule thus: “When a government does not speak for itself, it may not exclude speech based on ‘religious viewpoint’; doing so ‘constitutes impermissible viewpoint discrimination.’” Kavanaugh writes, “a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like.”

Finally, in his concurring opinion, Justice Gorsuch published a strongly worded rejection of the standard adopted in Lemon v Kurtzman:

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 offi- cials and lower courts to let it lie.

This is a striking passage indeed. It reminds one of the late Justice Scalia’s comparison of the Lemon test to  “late-night ghoul.” The ACLU and the Biden administration sided Shurtleff  against the City of Boston.

©R. Scott Clark. All Rights Reserved.


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  1. Gorsuch badly wants the Court to formally overrule Lemon instead of just letting it continue to exist as a zombie. I think there’s a pretty good chance that will happen in the Kennedy v. Bremerton School District case (aka the praying football coach case), argued last week and pending decision later this term.

    I also think it is quite remarkable how often state and local government bodies and school districts continue to act as though Lemon still has force. And it’s even more remarkable that attorneys (like the attorney for Americans United for Separation of Church and State who argued for the school district in last week’s Kennedy oral argument) continue to try to advance that line of argument to the Supreme Court despite the Court having been utterly clear that it’s not buying it.

  2. In my view, the “Americans United for Separation of Church and State” exists to stamp out any open and public display of faith. They don’t want separation; they want elimination.

  3. I don’t think anyone has really thought of Boston endorsing or promoting Christian views and values since about the late 1600s or so.

  4. Being from about 20 miles south of Boston for most of my life, I can assure you that Tom is correct. It would most certainly be considered a mission field. I can attest to that.

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