The Supreme Court on Monday cleared the way for the Christian flag to fly over Boston’s city hall in a ruling that may do little to resolve confusion over the limits of religious liberty and free speech.
All nine justices agreed that Boston officials should not have refused a Christian group’s request to raise its flag on a city pole, but most said a simple policy change would make it possible — and lawful — to refuse faith-related requests in the future.
“Nothing prevents Boston from changing its policies going forward,” wrote Justice Stephen Breyer in the majority opinion.
Five justices, including Breyer’s two fellow liberals, joined his opinion. The other three justices agreed with the majority’s conclusion, but not the legal path it took to get there. There were no dissents.
The case, Shurtleff v. City of Boston, centered on the plaza outside Boston’s city hall and its three flagpoles. More specifically, the justices considered officials’ yearslong habit of allowing private groups to not only use the space for their events, but also raise their flags on the one pole that was usually reserved for the city’s own flag.
“Inspired by open public spaces like the Piazza del Campo in Siena, the plaza was designed to be ‘Boston’s fairground’ and a ‘public gathering space for the people,’” Breyer pointed out in the majority opinion.
From 2005 to 2017, around 50 unique flags were flown on the pole that Boston chose to share with private groups. Most were country flags, but some were linked to causes, such as the LGBTQ Pride flag.
Over this period, city officials said yes to every flag-raising request it received. That streak ended in 2017, when Harold Shurtleff, who leads a group called Camp Constitution, applied to raise the Christian flag.
“The commissioner worried that flying a religious flag at City Hall could violate the Constitution’s Establishment Clause,” Breyer noted.
Boston refused to fly the Christian flag, prompting Shurtleff to sue. He alleged that city officials were engaged in religious discrimination and that they had violated the First Amendment’s guarantee of free speech.
The city, on the other hand, argued that flag raising and flying should be viewed as government speech. Under Supreme Court precedent, the government is allowed to refuse to share a message when it’s speaking for itself.
“The First Amendment’s Free Speech Clause does not prevent the government from declining to express a view,” Breyer wrote in the majority opinion.
The lower courts agreed with Boston’s position, ruling that city officials had not violated Shurtleff’s speech rights. But on Monday, the Supreme Court overturned those decisions, determining that the flagpole should have been viewed as a public forum, not a form of government speech.
“While the historical practice of flag flying at government buildings favors Boston, the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech,” Breyer wrote.
This statement alludes to the questions the court currently uses to determine if something is government speech. First, justices consider the historical context for the behavior. Then, they reflect on what the public likely assumes about the message. And finally, the justices assess “the extent to which the government has actively shaped or controlled the expression,” he said.
In the majority opinion, Breyer acknowledged that these questions don’t always lead to a clear answer. Boston might have won if the court stopped after the first two, he said, noting that the loss was based primarily on the third prong of the government speech test.
“We (looked) at the extent to which Boston actively controlled these flag raisings and shaped the messages the flags sent. The answer, it seems, is not at all. And that is the most salient feature of this case,” Breyer said.
In the future, Boston could put forth a new policy that makes it clear that the flagpole is not a public forum, he added. But until then, officials cannot refuse to raise the Christian flag.
The justices who did not join Breyer’s opinion agreed with this conclusion, but said the court should have done more to clear up First Amendment-related confusion.
Justice Samuel Alito wrote that relying on factors like public perception and historical context distracts from a more important question: whether a government official is actually speaking or merely providing a platform to someone else. “To prevent the government-speech doctrine from being used as a cover for censorship, courts must focus on the identity of the speaker,” he said.
Justice Neil Gorsuch focused on city officials’ initial assumption about the establishment clause, arguing that leaders across the country don’t understand what the Constitution actually says about the relationship between church and state. “Not a single member of the court seeks to defend Boston’s view that a municipal policy allowing all groups to fly their flags, secular and religious alike, would offend the establishment clause. How did the city get it so wrong?” he wrote.
These two concurring opinions make it clear that some of the justices would like the court to adjust its approach to free speech and religious freedom. But, for now, the ball is in Boston’s court to decide whether it will put forth a new policy or let the Christian flag fly.