By Robert Barnes,
Drew Angerer Getty Images
Supreme Court justices Tuesday generally seemed to think it was a mistake for the city of Boston to refuse a ceremonial city hall flag-raising to a Christian group when it had never turned down such a request from any other organization.
But it was the First Amendment follow-ups that created concern. What about a request from a Nazi group to raise a swastika? The Ku Klux Klan? Or even, the New York Yankees?
The case involves three flagpoles on a plaza outside Boston City Hall. One flies the U.S. flag, one the Massachusetts flag and most of the time the third flies the city’s flag.
Occasionally, the city replaces its own flag with another, after a group applies to hoist its own banner for a brief time, usually in connection with an event.
From 2005 to 2017, the city approved 284 consecutive requests. But then Harold Shurtleff, who leads a conservative group called Camp Constitution, applied to raise a white flag with a red cross on a blue square in the upper left corner, which he noted was a “Christian flag.”
He was turned down, on the grounds it would appear that the city was endorsing one religion over another.
Lower courts said the city had that prerogative. But Shurtleff’s case has had the remarkable effect of uniting conservative religious groups with the American Civil Liberties Union and the Biden administration, all of whom said the city was wrong.
Supreme Court precedent shows that “when the government chooses to open up its own property for use by third parties to express their messages, the government cannot restrict access based on viewpoint, including religious viewpoints,” said Justice Department lawyer Sopan Joshi.
The city has some discretion, but it probably means that if it permits a group to “raise a Black Lives Matter flag, they probably would have to be able to raise a Proud Boys flag,” he said, referencing the racial justice movement and the far-right group, respectively. “I mean, that’s just what the First Amendment demands.”
Douglas Hallward-Driemeier, representing Boston, agreed that if the flagpoles are considered a public forum, the constitutional prohibition of state-established religion “would not provide a basis to exclude a religious flag.”
But the city official who denied the request thought of the flagpole as “the city’s speech. . . . And the establishment clause does apply to the government’s own speech.”
Some justices said they understood the view. “To an ordinary observer walking past City Hall, if you see a flag on the pole, you think it’s City Hall speaking,” said Justice Sonia Sotomayor. As she has in recent oral arguments, Sotomayor participated remotely from her chambers because of concerns about the coronavirus.
But most seemed to think Boston had opened itself up by accommodating so many other requests.
Justice Neil M. Gorsuch said that if the official made a mistake about the “so-called” separation of church and state, “why doesn’t it resolve this case?”
Gorsuch is part of a conservative majority on the court that has been far more protective of religious groups. Liberal justices seemed to think it might be best just to decide that Boston made a well-intentioned mistake and move on without making new law.
“In the context of a system where flags go up, flags go down, different people have different kinds of flags, then it is a violation of the free-speech part of the First Amendment and not an establishment clause violation,” Justice Elena Kagan said. “The end.”
Justice Stephen G. Breyer also wondered if the case was worth it. “Can’t it be settled?” he asked.
Mathew Staver of Liberty Counsel, which is representing Shurtleff, said the city has been unaccommodating.
The city argued that raising the flag was government speech because of its “mistaken view of the Establishment Clause. . . . It’s very clear that the same flag could have flown with the same exact symbol for the same one-hour event without any incident, had Camp Constitution simply lied and said this is not the Christian flag, it’s the Camp Constitution flag.”
There were some facts that made the case a little more complicated. Although Shurtleff was arguing his speech rights were being violated, he has complained to the city when it has briefly flown other flags, including the Chinese banner. Hallward-Driemeier said that showed even Shurtleff felt the display was government speech.
Most of the flags that have flown on the third flagpole have been those of foreign countries, but a handful have not. Chief Justice John G. Roberts Jr. asked Hallward-Driemeier, “Do I understand you to be saying that, to some extent, the city approves of every flag that flies?”
“It has to confirm that raising a flag is consistent with the city’s message,” Hallward-Driemeier replied.
But Roberts pointed out that the city once flew the banner of a rival professional hockey team that defeated the Boston Bruins to win the Stanley Cup. “Does the mayor of Boston really approve of the Montreal Canadiens?” Roberts asked.
The mayor lost a bet, Hallward-Driemeier explained.
The case is Shurtleff v. City of Boston.