When a flag means more than a flag

Chief Justice Warren Burger famously observed that there must be some “play in the joints” between what the First Amendment’s establishment clause prohibits and what its guarantee of the free exercise of religion permits.

A new case recently granted for argument by the U.S. Supreme Court asks about the play in the joints between the establishment clause and another neighboring First Amendment right, the freedom of speech.

The City of Boston permits civic groups in the community to fly their flag on a pole at City Hall after completing a relatively straightforward application. But a city official refused a request from one Bostonian to fly a Christian flag (a white field with blue in one corner under a red cross), suggesting that it would imply the city’s endorsement of Christianity.

A city or any other government agency would transgress the First Amendment’s establishment clause if it officially endorsed one religion over all others. Boston has no power to make Christianity the official religion of the city or to fly a Christian flag exclusively. No one is arguing otherwise.

At the same time, Boston cannot discriminate against Christians when they speak and participate in the public square just like anyone else—and there’s the rub. The lawyers at Liberty Counsel, who represent the flag-bearing applicant, argue that the city has created an open forum in which any group can apply to fly its flag over city hall. Over a dozen years, the city approved nearly 300 flags from the community for its flagpole, from the gay pride flag to the flags of Albania, China, and Cuba.

By welcoming all these flags through a neutral, non-judgmental application process, the city has said, in essence, that the flag pole is a sort of public service. The flags in Boston do not represent the city’s official speech, but the speech of community groups that ask to use it. No passer-by, seeing the Albanian flag flying, thinks that Boston has seceded from the union and joined itself to a country in Eastern Europe. Surely, Bostonians recognize that the flag is probably tied to some celebration or a festival of Boston’s Albanian-American community.

This doctrine of equal treatment under the free speech clause has been a powerful tool for Christian litigants in years past, for it often affords more protection than the free exercise clause. The right to distribute religious tracts, to receive funding for a Christian student newspaper, or to hold after-school Bible studies in school buildings have all been upheld by the Supreme Court under the free speech clause.

But there are some principles for American Christians to keep in mind.

First, as much as we may wish others to appreciate the faith-filled roots of our nation’s founding, it is not appropriate for the city to permanently fly a Christian flag over its city hall. We rightly point to the Christian roots of Western civilization and the American experiment, but the First Amendment means that we can never be a Christian nation in an official sense like Great Britain or Malta. Whereas the Queen of England is automatically the head of the Church of England as well as head of state, the Constitution prohibits a religious test for the president or any other public official.

Second, we as Christians need to be prepared to see flags of religions, ideologies, and movements with whom we have irreconcilable disagreements also flying from those same publicly available flag poles. We already do. We may not like it, and in our political order, we are not compelled to like it, but we must accept it as a term of condition that comes with American citizenship.

Christians have already had to make this accommodation in the context of legislative prayer. When Christians, championing the role of faith in public life, have defended prayer before legislative bodies, we know that it means the imam and the rabbi have the same right to participate as the pastor and the priest.

The folks in Boston need to reread the First Amendment—and honor it.