Flag flap ends up in Supreme Court

The U.S. Supreme Court will again take up the issue of religious symbols in the public square. The justices on Thursday agreed to hear a Boston organization’s appeal after the city denied its request to fly a flag with a cross above City Hall.

Boston resident Hal Shurtleff in 2017 asked the city if he could fly the flag of his organization, Camp Constitution, which features a cross, for one hour to mark Constitution Day. The city declined the request, citing the fact that the flag was a Christian flag—even though officials had allowed other flags with religious imagery.

Lower courts sided with the city, finding the flagpole was not a public forum subject to constitutional free speech guarantees. Instead, the courts said the flagpole represented government speech—meaning the city could select what messages it would convey—so allowing a Christian flag would violate the establishment clause.

“The city has never before displayed such a flag and, as such, this pioneering elevation of an ‘important symbol’ of the Christian heritage would come without the secular context or importance that the passage of time may have afforded other displays,” Judge Bruce Selya wrote for a unanimous three-judge panel of the First U.S. Circuit Court of Appeals.

Shurtleff’s attorneys with Liberty Counsel say that amounts to censorship. They argue the city created a public forum subject to free speech guarantees by previously granting all flag requests before Shurtleff’s—including requests for flags bearing religious symbols. They also argue city officials explicitly designated the flagpole, among other venues, as “public forums” open to all applicants.

In 2019, the Supreme Court ruled in favor of a century-old cross on public property in Bladensburg, Md., honoring men who died in World War I. Brad Jacob, a professor at Regent University School of Law, highlighted the differences between the cases: The Bladensburg case asked whether the cross was a governmental endorsement of religion, not whether the government can block religious groups’ messages while allowing others.

Jacob said this case has more in common with rulings about the Equal Access Act, a federal law that guarantees religious student groups the same access to schools for meetings as secular, nonacademic groups. It also resonates with more recent rulings striking down lockdown restrictions that treated places of worship differently than secular businesses, he said.

“The court has made clear over and over again that it doesn’t violate the establishment clause for the city to have a neutral policy that different groups can participate in if some of them are faith-based,” Jacob said. “When you have this flagpole that every [hour or so] has a different message going up, do you really think a rational citizen is going to look at that and say, ‘Wow, the city of Boston wants us all to become Christians because they left that flag up there?’”