The Supreme Court, in an increasingly well-known development, handed a victory to a Christian conservative organization on Monday. The Court’s ruling in Shurtleff v. Boston notes that this organization, Camp Constitution, should have flown a Christian-identified flag from a flagpole outside Boston City Hall.
But shurtleff is in contrast to several other high-profile victories for religious conservatives that the Court has pronounced in recent years because the judges did not have to revise existing legislation to achieve this result. The decision was unanimous (although the judges were somewhat divided on why the plaintiffs should prevail in this case), with Liberal judge Stephen Breyer writing the majority opinion.
The case concerns three flagpoles outside Boston City Hall. The first flagpole shows the American flag, with a smaller flag below it in honor of prisoners of war and missing servicemen. On the second pole is the flag of the state of Massachusetts. And the third usually – but not always – shows the city’s own flag.
This third flagpole, and the city’s custom of sometimes having outside groups display a flag of their choice, is the centerpiece of shurtleff† Since at least 2005, the city has allowed outside groups to hold flag ceremonies in the square, where they can hoist a flag of their choice on the third flagpole.
At various times, the third flagpole has displayed the flags of many countries, including Brazil, China, Ethiopia, Italy, Mexico and Turkey. It has displayed the rainbow LGBTQ pride flag, a flag commemorating the Battle of Bunker Hill, and a flag honoring Malcolm X.
But when Harold Shurtleff, head of an organization called… camp constitutionasked to fly a flag related to the Christian faith, the city refused – claiming that displaying such a flag could be interpreted as “a city endorsement of a particular religion”, in violation of “separation of church and state or the [C]institution.”
The majority of Judge Breyer’s opinion concludes that the city made a mistake. Drawing on numerous cases showing that the government generally cannot discriminate against a particular point of view, Breyer notes that “Boston admits that it rejected Shurtleff’s request solely because the Christian flag he asked to be raised[ed] a specific religion.’” According to the facts of this case, that is a form of viewpoint discrimination and is not allowed.
While it’s worth noting that Judges Neil Gorsuch and Brett Kavanaugh each wrote separate opinons stating that they would like the government to deal with religion, and they have two chances to do so this term, this case is a straightforward one. decision that follows current law – in short, nothing remarkable.
The immediate deployment in shurtleffmoreover, are quite small. As Breyer points out in his opinion, other cities have legal policies that only allow certain flags on state-owned flagpoles. And “nothing prevents Boston from changing its policies in the future.”
But the policy that went into effect in 2017, when Shurtleff asked for a Christian flag to be displayed from the Boston flagpole, is not allowed.
The case revolves around who was speaking when the flags were raised on the third flagpole
The general rule in cases of freedom of expression is that the government should not discriminate against a particular point of view. Boston, for example, could not have a rule that Democrats are allowed to gather in City Hall Square, but Republicans cannot. Or that people who support a restrictive immigration policy are allowed to do so, but not people who oppose it.
But there is an exception to this general rule when the government speaks with its own voice. That is, the government is allowed to express its own opinion on a subject without also providing a forum for dissenting opinions. When a public school principal tells her students to “say no to drugs,” she doesn’t have to give the same amount of time to the grumpy grade kid who sells weed from his 1997 Subaru Legacy.
The primary question in shurtleff is whether, when the Boston City Council allowed a wide variety of private groups — but not Camp Constitution — to display a flag of their choosing outside City Hall, these flags represented the City’s Speech or the Private Groups’ Speech. Again, if the flags were a form of government speech, Boston may exclude viewpoints it does not share.
But the court concluded that the city did not use the third flagpole to express its own views, and that it has in fact “created a forum for expressing the views of private speakers”. As Breyer points out, Boston doesn’t seem to have made any attempt to control which flags are displayed from this flagpole until it turned down Shurtleff’s request to fly a Christian flag.
“Between 2005 and 2017,” notes Breyer, “Boston adopted about 50 unique flags, hoisted in 284 ceremonies. no evidence of denial of a request prior to the events giving rise to this case† The city official who approved the flag ceremonies testified that, according to his normal practice, he “never requested that a flag be revised or any changes made to a flag in connection with approval”; nor did he even see flags before the events.”
So, based on these facts, Boston could not properly claim that it was expressing its own opinion when it allowed a flag to be hoisted on one of its flagpoles.
That said, Breyer’s view explicitly allows Boston to change its policy to exclude Christian (and other) flags. Breyer opposes Boston’s policy of San Jose, California, which “states in writing that its ‘flagpoles are not intended to serve as a forum for free speech by the public’, and lists approved flags that may be flown.” ‘as an expression of the official feelings of the city.’”
In the future, if Boston wants to adopt a San Jose-style policy of maintaining much tighter control over which flags are displayed on its flagpole, it may do so.
Several judges want to bring a sledgehammer to the wall that separates church and state
As noted above, Boston justified its decision to deny Shurtleff’s request because it believed it would violate its constitutional ban on government endorsement of religion. Under existing precedents, that was a mistake.
In practice, among other things, the government cannot approve something if it does not speak with its own voice; if the Christian flag is the Camp Constitution speech and not the Boston speech, then the government does not endorse any position when this flag is displayed. And, for the reasons explained in Breyer’s opinion, the Boston City Council did not speak in its own voice when it allowed private groups to use its flagpole.
Nevertheless, several judges seem keen to repeal the rule that the government cannot fully endorse a particular religious position.
This ban on government endorsement of religion was embraced by the Supreme Court in Citroen v. Kurtzman (1971), which held, among other things, that the “principal or primary effect” of a government policy cannot be one that “promotes or inhibits religion.”
But Gorsuch, in an opinion from Judge Clarence Thomas, argues that courts should no longer follow Lemon – claim that Lemon‘s rule has “brought forth nothing but chaos.” Kavanaugh, meanwhile, also published a brief concurring opinion warning that “this dispute arose solely because of a government official’s misinterpretation of the settlement clause” — the clause that requires some degree of separation from church and state.
These asides from Gorsuch and Kavanaugh aren’t particularly surprising. During a plea last week, both judges seemed eager to dismiss Lemon† And in an argument last December, Kavanaugh even suggested the government could be required to fund religious education in certain circumstances — because, he suggested, “discrimination of all religions” isn’t allowed.
So while shurtleff is a small case that largely only applies existing law to the Boston flagpole, the unanimous opinion in shurtleff suggest a storm is coming. The Court is likely to recreate much of its case law regarding the establishment clause, even if it will likely wait a few more weeks before doing so.