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Religious freedom flying high

Daniel R. Suhr | The Boston flag case could kill off the scary specter of government “endorsement”


People walk through the plaza in front of Boston City Hall and its three flagpoles on Monday. Associated Press/Photo by Charles Krupa

Religious freedom flying high
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Once upon a time, a liberal member of the U.S. Supreme Court wrote that the Constitution’s First Amendment required the justices to “keep the wall of separation between church and state high and impregnable.” Not one justice on today’s Supreme Court defends that view. In fact, Monday’s unanimous decision in Shurtleff v. Boston is a good reminder that issues of America’s religious heritage need not always be controversial.

The question before the court was simple. Boston has three flag poles on the plaza outside its city hall. It usually flies the American flag, the Massachusetts flag, and the Boston flag. As a service to its citizens, the city allows groups to use the plaza for rallies, remarks, and other public gatherings. As part of seeking a permit for the plaza, groups can also ask to fly their own flag during their event in place of the Boston flag. For nearly 300 events from 2005 to 2017, the city approved every single flag request submitted.

That all changed when the head of a non-profit group asked to fly the Christian flag—a red cross on a blue background in the upper left corner of a white field. Boston’s facilities manager denied the application because he said he was fearful that “flying a religious flag at City Hall could violate the Constitution’s Establishment Clause.”

This week, not a single justice found that fear justified in this case. Admittedly, the holding is a narrow one. Just three years ago, Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented from a 7-2 majority in American Legion v. American Humanist Association, a challenge to a Maryland World War I memorial in the shape of a cross. There, Ginsburg wrote, “The Latin cross is the foremost symbol of the Christian faith” and displaying it as a war memorial on public property “elevates Christianity over other faiths, and religion over nonreligion.” In that instance, the cross was a permanent display, with no comparable nearby displays to contextualize or balance it. The city hall flagpole, by contrast, would only be used as a temporary display of the Christian flag and could be immediately contextualized if a different group sought to fly the flag of Israel with the Jewish Star of David on it or the Nation of Islam flag with its star and crescent moon.

Monday’s unanimous decision is a good reminder that issues of America’s religious heritage need not always be controversial.

Still, even liberal Justices Stephen Breyer and Elena Kagan joined the conservative justices in upholding the memorial cross. And Justice Breyer wrote the majority opinion in Shurtleff allowing the display of the Christian flag. His authorship of this majority opinion is a fitting capstone to his religion-clause jurisprudence, which employed multifactor balancing tests for context that generally led to the acceptance of public displays of religious faith and heritage. He and Justice Kagan have never been liberals of the “high and impregnable wall” variety, and even Justice Sotomayor did not fly that flag in dissent here, so to speak.

Lawyers at secular groups like the Freedom From Religion Foundation and the American Humanist Association have made a cottage industry out of sending demand letters threatening town councils and school boards with lawsuits because of supposed “endorsement” of religion caused by a prayer at a public meeting, a Christmas creche outside a courthouse, a cross on a flag, or a Ten Commandments in a park.

This same scary specter of “endorsement” is the reason Coach Joe Kennedy is in the dock for praying on the field at the end of a public high school’s football games. A unanimous court has again rejected these concerns in Shurtleff, and yet does anyone doubt the opponents of America’s faith-filled heritage will continue to use decades-old decisions like blunt objects to bash litigation-shy local officials?

Justice Antonin Scalia once compared the court’s prior “endorsement test” to “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried … frightening the little children and school attorneys.” It’s high time for this horror movie to end.


Daniel R. Suhr

Daniel R. Suhr serves as managing attorney at the Liberty Justice Center. His clients include victims of cancel culture, parents seeking educational alternatives for their children, and citizens speaking up in the public square. Before joining LJC, he served as a senior adviser to Wisconsin Gov. Scott Walker and a law clerk for Judge Diane Sykes of the 7th U.S. Circuit Court of Appeals. He is a member of Christ Church Mequon, an Eagle Scout, and a fair-weather runner. He’s married to Anna and loves building Legos and watching Star Wars with their young sons, Will and Graham, at their home near Milwaukee.

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