Supreme Court Rules Flying Christian Flag Protected by 1st Amendment Rights

National   |   Steven Ertelt   |   May 2, 2022   |   10:56AM   |   Washington, DC

The Supreme Court unanimously ruled today that the city of Boston, Massachusetts wrongly banned Christian flags from a community flag program.

Liberty Counsel Founder and Chairman Mat Staver presented oral argument in January to the U.S. Supreme Court in Shurtleff v. City of Boston, arguing that the City of Boston violated the Constitution by censoring a Christian flag in a public forum open to “all applicants” merely because the application referred to it as a “Christian flag.”

There are three flagpoles outside City Hall that fly the U.S., Massachusetts and Boston flags, plus a fourth flag on Congress Street, which runs parallel to City Hall. For 12 years from 2005-2017, Boston approved 284 flag-raisings by private organizations with no denials on the flagpoles that it designated as a “public forum.”

Had the flag been referred to as anything but Christian, the city would have approved it. The flag itself was not the problem; it was the word “Christian” describing it in the application that was the issue. The year before Camp Constitution’s application (2016-2017), Boston approved 39 private flag-raising events, which averaged three per month. In 2018, Boston approved 50 private flag raising events, averaging nearly one per week. One included a flag of a private credit union.

Boston now argued that despite the policy and longstanding practice, the private flag raisings are actually government speech.

Today, the Supreme Court ruled Boston can’t exclude Christian flags when allowing other flags.

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Justice Breyer, writing for the court, said, “We conclude that, on balance, Boston did not make the raising and flying of private groups’ flags a form of government speech. That means, in turn, that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint ‘abridg[ed]’ their ‘freedom of speech.’”

The 9-0 decision overturned a lower court’s ruling that the rejection of Camp Constitution and its director Harold Shurtleff did not violate their rights to freedom to speech under the U.S. Constitution’s First Amendment. 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.

The High Court stated that it is not government speech, and because the government admitted it censored the flag because it was referred to as a Christian flag on the application, the censorship was viewpoint discrimination, and there is no Establishment Clause defense.

Chief Justice Roberts, Sotomayor, Kagan, Kavanaugh, and Barrett joined the majority opinion. Justice Kavanaugh filed a concurring opinion. Justice Alito filed a concurring opinion in the judgment, in which Thomas and Gorsuch joined. Justice Gorsuch filed a concurring opinion in the judgment, in which Thomas joined.

“We do not settle this dispute by counting noses—or, rather, counting flags. That is so for several reasons. For one thing, 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 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 by deposition that he had previously “never requested to review a flag or requested changes to a flag in connection with approval”; nor did he even see flags before the events. Id., at 150a. The city’s practice was to approve flag raisings, without exception. It has no record of denying a request until Shurtleff’s. Boston acknowledges it “hadn’t spent a lot of time really thinking about” its flag-raising practices until this case. App. in No. 20–1158 (CA1), at 140 (Rooney deposition). True to its word, the city had nothing—no written policies or clear in[1]ternal guidance—about what flags groups could fly and what those flags would communicate,” the Court wrote.

In his concurrence, Justice Kavanaugh wrote, “A government violates the Constitution when (as here) it excludes religious persons, organizations, or speech because of religion from public programs, benefits, facilities, and the like.”

Staver was elated to hear about the decision.

“This 9-0 decision from the Supreme Court strikes a victory for private speech in a public forum. This case is so much more significant than a flag. Boston openly discriminated against viewpoints it disfavored when it opened the flagpoles to all applicants and then excluded Christian viewpoints. Government cannot censor religious viewpoints under the guise of government speech,” he said.

In response to the ruling, Alliance Defending Freedom Senior Counsel and Vice President of Appellate Advocacy John Bursch told LifeNews that the Supreme Court decided correctly.

He said: “When city officials open a program or activity to ‘all applicants,’ they cannot exclude those wishing to express religious beliefs. The city of Boston’s exclusion of religious expression from an otherwise wide-open public program amounted to discrimination based on viewpoint and is therefore unconstitutional. That said, this case is about much more than displaying a Christian flag at City Hall; this is about the protection of our First Amendment rights, which extend equally to all Americans, without government punishment. We are pleased the Supreme Court has upheld the right of religious citizens to participate in the public square.”

ADF attorneys and lead counsel at Baker & Hostetler, LLP, filed a friend-of-the-court brief with the high court on behalf of Bronx Household of Faith. ADF attorneys represented the inner-city New York City church for more than 20 years in its own legal battle to continue renting an otherwise empty public school building on Sundays for the church’s weekly worship service.

During oral argument, Boston’s attorney, Douglas Hallward-Driemeier, admitted that if the High Court finds that if the city created a public forum, then Boston has no defense.

When the city’s attorney attempted to justify the policy to fit their agenda, Justice Alito said, “You did some after-the-fact gerrymandering of your policy and reverse engineered it.”

Hallward-Driemeier also stated that the city’s “goal is to foster diversity of communities” and “commemorate events or occasions.”

In response, Justice Clarence Thomas stated that if Christians are not a part of that diversity the city purports to support, “that’s limited diversity.”

Justice Amy Coney Barrett also asked the city attorney, “Isn’t celebrating Constitution Day considered an event?”

Justice Brett Kavanaugh also acknowledged that it seems the Establishment Clause is not the issue in this case since there has not been equal treatment of religious groups or religious speech.

Justice Neil Gorsuch also noted that the city cast religion into the same category as speech deemed offensive by censoring the religious viewpoint.

Liberty Counsel’s Founder and Chairman Mat Staver said, “Today is a historic day and I was honored to present this religious viewpoint case before the U.S. Supreme Court. This case is so much more significant than a flag. Boston cheated when it opened the flagpoles to all applicants and then excluded Christian viewpoints. The city then claimed that the flagpoles never were a public forum despite its history and express policy. The city’s censorship is clearly unconstitutional, and government cannot censor religious viewpoints.”