Supreme Court Awards Resounding Victory for the First Amendment in Shurtleff v. City of Boston

COMMENTARY: The court unanimously ruled that Boston violated the First Amendment when it banned an organization called Camp Constitution from flying an ecumenical Christian flag.

The US Supreme Court ruled unanimously May 2 that Harold Shurtleff has the right to fly a Christian flag at Boston City Hall.
The US Supreme Court ruled unanimously May 2 that Harold Shurtleff has the right to fly a Christian flag at Boston City Hall. (photo: Kit Leong / Shutterstock)

On Monday morning, Justice Stephen Breyer, who will be retiring at the end of the Supreme Court’s current term, issued one of his last opinions for the court. Although he is one of the court's more liberal members, it was a resounding defense of the right of Christians to fly a flag in front of Boston's City Hall — something that officials had banned them from doing.

In fact, the Court unanimously ruled against the City of Boston. Not a single justice agreed with Boston's Property Management Department that flying a flag from one of three flagpoles on City Hall Plaza violated the Constitution's Establishment Clause. To quote Justice Breyer, “When the government encourages diverse expression — say, by creating a forum for debate — the First Amendment prevents it from discriminating against speakers based on their viewpoint.” 

In other words, Boston violated the First Amendment when it banned an organization called Camp Constitution from flying an ecumenical Christian flag “to enhance understanding of our Judeo-Christian moral heritage.” 

Why did all the justices, with their widely differing attitudes to religion, slap down Boston so resoundingly? The answer lies in the background. There are three flagpoles on the plaza. The city flies the American flag from the first pole (along with a banner that honors prisoners of war and soldiers missing in action) and the flag of the Commonwealth of Massachusetts from the second. 

On most days, the city’s own flag flies from the third pole. But for years Boston has permitted groups to hold ceremonies on the plaza during which participants may use it to raise a flag of their choosing for the duration of the ceremony. Over the course of 12 years, about 50 flags were flown at 284 ceremonies. While most were the national flags of other countries, some were associated with causes or historical events: for example, Juneteenth, the Revolutionary War, and the city’s LGBTQ community.

In 2017, Harold Shurtleff, director of Camp Constitution, made his request to fly a Christian flag, which was designed in the early 20th century; it has a white background with a red Latin cross on the inside and an upper blue quarter. The commissioner of Boston’s Property Management Department worried that flying the Christian flag would violate the Establishment Clause and so denied Shurtleff’s request. He told Shurtleff that the event could proceed if they would raise a different flag. Shurtleff stood his ground and went to court, claiming that the city’s refusal violated the First Amendment’s free speech guarantee. A lower court and the First Circuit court of appeals ruled in favor of the city based on the belief that the flag-raising qualified as government speech and so the city had the authority to grant and deny applications as it saw fit. And so Shurtleff v. City of Boston reached the highest court in the nation. 

Breyer, writing for six justices, agreed that when the City of Boston was flying its own flag, or those of the United States and Massachusetts, that counted as government speech. But what about the 20 or so times a year when Boston allowed private groups to raise their own flags? He concluded that, on these occasions, the city was not expressing its own message but, rather, allowing private citizens to express their views — views that were protected by the Constitution's guarantee of free speech. 

“When a government does not speak for itself, it may not exclude speech based on ‘religious viewpoint,’” explained Breyer. 

Four of the Court’s originalists — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — concurred in the judgment but wrote separately. Kavanaugh in particular made a crucial point that will resonate with Catholics and other people of faith: 

“Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class.”

He also said that the dispute “arose only because of a government official’s mistaken understanding of the Establishment Clause.”

That raises the question: How could Boston get it so wrong? Some observers suspect that the city would have taken a more indulgent view if a non-Christian religious group had asked to raise its flag; in Boston, even more than most cities, “diversity” has effectively become the civic religion. But, in fact, there are grounds for honest confusion in this area. Justice Gorsuch brought up the subject of Lemon v. Kurtzman, a 1971 Supreme Court decision that established three notoriously tricky considerations to decide whether the Establishment Clause had been violated. The statute must have a secular legislative purpose; it must “neither advance nor inhibit religion”; and it must not cause “excessive government entanglement with religion.” 

You can see how confusion could arise — and indeed has. To quote Gorsuch, “Lemon led to a strange world in which local governments have sometimes violated the First Amendment in the name of protecting it.” If we are being charitable, we may assume that this is what happened in Boston. But the city’s decision to fight this all the way to the top was certainly a bad call: It could not find a single liberal justice to vote in its favor.  

It's a shame that the Lemon test, as it’s known, remains in place to confuse officials who think that if they fail to censor religious speech they are endorsing religion in violation of the Establishment Clause. But that may change by the end of the Supreme Court’s term, when it will rule on the case of Coach Joseph Kennedy, a public high school football coach who was fired after he refused to refrain from private prayer after games. In the meantime, there is nothing to stop a Christian flag flying, albeit briefly, in front of Boston City Hall and we can celebrate a small but significant victory for free speech and religious freedom in America.