Supreme Court rules Boston unconstitutionally censored a Christian flag on its public forum flagpole

The U.S. Supreme Court ruled Monday that the City of Boston acted unconstitutionally when it censored a private flag in a public forum simply because it was a “Christian flag.”

Justice Stephen Breyer, a court liberal who will retire after this court term and be replaced by radical Justice Ketanji Brown Jackson, wrote the opinion for the court, which had voted 9-0. Joining him in the majority opinion were Chief Justice John Roberts and Justices Sonia Sotomayor, Elana Kagan, Brett Kavanaugh, and Amy Coney Barrett. Three concurring opinions were filed by Kavanaugh, Justice Samuel Alito, who was joined by Justices Clarence Thomas and Neil Gorsuch, and another concurring opinion was added by Gorsuch, joined by Thomas.

Liberty Counsel Chairman Mat Staver presented oral arguments before the court in January on behalf of Boston resident Hal Shurtleff and the Christian civic group he runs, Camp Constitution. Camp Constitution had asked the city for a permit to raise the Christian flag on a certain Boston City Hall flagpole to commemorate Constitution Day and Citizenship Day, along with the civic and cultural contributions of the Christian community to the City of Boston and the Commonwealth of Massachusetts. The flagpole in question is used to fly many types of flags and is designated as a public forum flag; other flagpoles are used for the city, the commonwealth, and the U.S. flag.

The Supreme Court wrote that “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.’”

“We do not settle this dispute by counting noses—or, rather, counting flags,” the court wrote. “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 internal guidance—about what flags groups could fly and what those flags would communicate.”

In addition, the Court wrote, “Here, Boston concedes that it denied Shurtleff ’s request solely because the Christian flag he asked to raise “promot[ed] a specific religion.” App. to Pet. for Cert. 155a (quoting Rooney deposition). Under our precedents, and in view of our government-speech holding here, that refusal discriminated based on religious viewpoint and violated the Free Speech Clause.”

The justices referred to the “Lemon Test,” which has been used to determine if a law violates the First Amendment. It refers to Lemon v. Kurtzman, in which the Supreme Court ruled that a Rhode Island law that paid a portion of the salary of some parochial school teachers was unconstitutional. The test has resulted in several contradictory decisions concerning 10 Commandment monuments and cross monuments around the country.

Justice Gorsuch’s concurrent opinion stated, “It’s time to let Lemon lie in its grave.”

Gorsuch continued, “How did the city get it so wrong? To be fair, at least some of the blame belongs here and traces back to Lemon v. Kurtzman, 403 U. S. 602 (1971). Issued during a “‘bygone era’” when this Court took a more freewheeling approach to interpreting legal texts, Food Marketing Institute v. Argus Leader Media, 588 U. S. ___, ___ (2019) (slip op., at 8), Lemon sought to devise a one-size-fits-all test for resolving Establishment Clause disputes. That project bypassed any inquiry into the Clause’s original meaning. It ignored longstanding precedents. And instead of bringing clarity to the area, Lemon produced only chaos. In time, this Court came to recognize these problems, abandoned Lemon, and returned to a more humble jurisprudence centered on the Constitution’s original meaning. Yet in this case, the city chose to follow Lemon anyway. It proved a costly decision, and Boston’s travails supply a cautionary tale for other localities and lower courts. The only sure thing Lemon yielded was new business for lawyers and judges.”

“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,” Gorsuch wrote.

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.”

Justice Alito, in his concurrence, wrote, that “courts must be very careful when a government claims that speech by one or more private speakers is actually government speech. When that occurs, it can be difficult to tell whether the government is using the doctrine ‘as a subterfuge for favoring certain private speakers over others based on viewpoint,’ id., at 473, and the government-speech doctrine becomes ‘susceptible to dangerous misuse….To prevent the government-speech doctrine from being used as a cover for censorship, courts must focus on the identity of the speaker. The ultimate question is whether the government is actually expressing its own views or the real speaker is a private party and the government is surreptitiously engaged in the “regulation of private speech.’ Summum, 555 U. S., at 467…. Consider first ‘the extent to which the government has actively shaped or controlled the expression.’

Government control over speech is relevant to speaker identity, in that speech by a private individual or group cannot constitute government speech if the government does not attempt to control the message. But control is also an essential element of censorship, Alito wrote.

“First, I want to give God the Glory,” Shurlteff said in a statement on Monday. “His Hand was in this case from the beginning. I want to thank the folks at Liberty Counsel that did an incredible job, and all of the people who support and make Camp Constitution possible. The main mission of Camp Constitution is to teach people the U.S. Constitution.  I think that this issue has given the nation a good lesson on the 1st Amendment.”

Liberty Counsel is known recently for defending several members of the U.S. military who objected to the Biden Administration’s vaccine mandate for all members of the military.

Read the timeline of the Liberty Counsel’s Navy Seal vs. DoD Austin shot mandate case here.

In 2006, Liberty Counsel represented Anchorage Baptist Temple and other churches in defending against a lawsuit brought by the ACLU and Alaskans who challenged a state law giving property tax exemption to property owned by a religious organization, if that property is the residence of an educator in a private religious school. The house in question that received the exemption was not owned by Dr. Jerry Prevo, then-pastor of ABT, but was his residence that is owned by the church.