Supreme Court Considers Boston’s ‘Flagpoles Case’
COMMENTARY: While the First Amendment restricts the government’s ability to regulate private speech, it does not restrict the government’s own speech.
At Tuesday morning’s Supreme Court oral argument, Harold Shurtleff stood up for free speech and religious freedom in a controversy that's likely to be remembered as “The Flagpoles Case.”
Here’s what happened: Outside Boston’s City Hall there are three flagpoles. The flags of the United States and the state of Massachusetts fly on the first two flagpoles. The Boston city flag flies on the third on most days, but the city regularly allows private groups to temporarily raise their own flags on the third flagpole in order to mark historic events or celebrate worthy causes.
Over the course of 12 years, officials had approved 284 applications as part of its “flag-raising program.” Approved flags have included those commemorating Juneteenth, the Revolutionary War and the Battle of Bunker Hill. Boston has also flown the flags of countries whose immigrants help make up the city, such as Ireland, Portugal, China, Panama, Vietnam and Haiti, as well as the city’s LGBTQ community.
On its website, the city says the following about its flag-raising program: “We commemorate flags from many countries and communities at Boston City Hall Plaza during the year. We want to create an environment in the city where everyone feels included, and is treated with respect. We also want to raise awareness in Greater Boston and beyond about the many countries and cultures around the world. Our goal is to foster diversity and build and strengthen connections among Boston’s many communities.”
That is the theory, anyway. But in practice? In 2017, Harold Shurtleff asked for permission to raise a flag in front of City Hall in connection with Camp Constitution’s Sept. 17 observance of Constitution Day and Citizenship Day. Shurtleff and his all-volunteer group hoped to host an event at City Hall Plaza that would feature “short speeches by some local clergy focusing on Boston’s history” and “to raise the Christian Flag.”
The Christian Flag? Yes, apparently there is such a thing. The flag referred to by Shurtleff is an ecumenical flag designed in the early 20th century to “represent Christianity and Christendom.” It has been adopted by the Federal Council of Churches in 1942 and used by many Protestant congregations. The flag has a white background with a red Latin cross on the inside and an upper blue quarter (also known as a “canton”).
Although every application to raise a flag had been granted in the past, Shurtleff’s was denied. A city official, citing an erroneous interpretation of the First Amendment’s Establishment Clause, denied the request weeks after it had been submitted. “The City of Boston maintains a policy and practice of respectfully refraining from flying non-secular flags on the City flag poles,” explained the commissioner of the city’s property management department.
Shurtleff went to court. Astonishingly, he lost before both the district court and the First Circuit court of appeals. The appellate court ruled that the flags displayed are “government speech.” Therefore, Boston could invite some private speakers, but not others, to participate. It could exclude Shurtleff, and that was that.
Fortunately, the Supreme Court is taking a second look. After Tuesday morning’s oral argument, it’s unlikely that Boston will prevail.
While the First Amendment restricts the government’s ability to regulate private speech, it does not restrict the government’s own speech. Despite Boston’s assertions, it appears most of the justices understand that the city didn’t exercise sufficient control over its flag-raising program for it to be considered “government speech.” In fact, not even the Biden administration believes that and filed an amicus brief supporting reversal.
Participating in Tuesday’s oral argument, Assistant U.S. Solicitor General Sopan Joshi explained that “government can express its own viewpoint all it likes but here Boston has opened up its own property to third parties so the city cannot bar religious viewpoints.”
Justice Clarence Thomas, noting the city’s goal to foster diversity and build and strengthen connections among Boston’s many communities, asked, "Wouldn't Christians in Boston be a part of that diversity calculus?” And then added, “So, [apparently] it's limited diversity.”
Boston officials justified denying Shurtleff’s request by saying that the city raising a religious flag would “be projected as an endorsement by the city of a particular religion.” And the court’s liberals at first seemed to agree.
“Everybody in his right mind” will think a Christian flag represents the government's position, commented Justice Stephen Breyer. “If you're on the street in Boston, why would you think this is anything other than the government flying a flag,” remarked Justice Elena Kagan. “To an ordinary observer, you think it's city hall speaking. You're asking us to import a fiction that the observer is going to link the Christian flag to a Christian event taking place and understand that it's not the city speaking?” added Justice Sonia Sotomayor. The three seemed initially to agree with the city that permitting the Christian Flag to be raised in front of Boston’s City Hall would breach the so-called wall of separation between church and state.
Fortunately, Becket Law came to the rescue. In its amicus brief, the group explains that while the court’s jurisprudence has evolved over the last 40 years, “lower courts and government officials at many levels seem to have a shag-carpet understanding of the Establishment Clause: one that is stuck in the 1970s and has not been updated since.”
Justice Brett Kavanaugh, specifically mentioning Becket’s brief, highlighted this point.
“It seems [that the] root cause of this is a mistaken view about the Establishment Clause. So many cases say it's not an Establishment Clause violation to put up religious speech after lots of non-religious speech.”
And as the oral argument came to a close, Kagan seemed to agree. “Flags going up and down isn't like putting a cross right on city hall; so it's not an establishment clause violation and excluding religious speech is a violation of free speech,” she remarked.
Let's be clear about one thing: Despite the city’s claim, the flags run by private groups in front of City Hall aren’t “government speech.” By opening up use of one of the flagpoles in front of City Hall for diverse groups in the community, Boston created what is known as a “public forum” for private speech. And, as Notre Dame Law School’s Religious Liberty Initiative cogently explains in its amicus brief, “the First Amendment’s demand is that all — including religious — retain their right to speak in public fora.”
The rule is simple: Boston cannot open up its flagpoles to flags from private “secular” groups and at the same time exclude groups with “religious” views.
A decision by the Court in Shurtleff v. Boston is expected by the end of June.