Supreme Court flag ruling a win for religious groups

In a unanimous decision Monday, the U.S. Supreme Court ruled that a Boston program that allowed various private flags to fly briefly outside City Hall violated the Constitution by excluding a Christian flag.

Justice Stephen Breyer, in an opinion joined by five other justices, concluded that the private flags flown on one of three Boston City Hall flagpoles did not constitute government speech subject to the city’s control. Instead, it qualified as private speech, meaning the government could not discriminate against its contents.

“The city’s practice was to approve flag raisings, without exception,” Breyer wrote. “Under our precedents, and in view of our government-speech holding here, that refusal discriminated based on religious viewpoint and violated the Free Speech Clause.”

That liberals and conservatives on the court came together in the case was no surprise to Laurence Tribe, a Harvard law professor and constitutional law expert. “This was a decision I predicted—and, frankly, that anybody familiar with the First Amendment could have predicted,” Tribe tweeted Monday. “How my hometown of Boston and the U.S. Court of Appeals for the 1st Circuit could’ve gotten this so totally wrong baffles me.”

Monday’s ruling brought to an end a case that began in September 2017, when Boston resident Hal Shurtleff and his nonprofit, Camp Constitution, sought the city’s permission to raise a cross-adorned flag for one hour in conjunction with a Constitution Day event. The city rejected the application, citing concerns it might violate the Constitution’s provision against establishing a state religion.

Shurtleff, assisted by Liberty Counsel attorneys, filed a federal lawsuit after his appeal to the city was rebuffed. Unfavorable rulings by both a federal district court and an appeals court followed—both concluding that flags on the flagpole constituted government speech subject to the city’s control.

But the Supreme Court rejected that conclusion. Applying what he called a “holistic inquiry,” Breyer examined the history of the expression at issue, the public’s likely perception as to who is speaking (the government or a private person), and the extent to which the government had shaped or controlled the expression.

“The key issue is whether Boston shaped or controlled the flags’ content and meaning; such evidence would tend to show that Boston intended to convey the flags’ messages as its own,” wrote Breyer. “And on that issue, Boston’s record is thin.” The city has allowed a variety of other flags to fly without objection, including a pride flag, a banner honoring emergency medical workers, and a flag sponsored by a local bank.

While concurring with the result, Justice Samuel Alito—in an opinion joined by Justices Neil Gorsuch and Clarence Thomas—rejected the multifactor test Breyer used. Instead, Alito warned against the government trying to justify regulating private speech by improperly labeling it as government speech.

Gorsuch wrote a separate opinion, also joined by Thomas, concluding that Boston’s real error lay in its belief that allowing the flag would run afoul of the establishment clause, which prohibits the government from endorsing particular religions. Gorsuch used the opportunity to criticize the multifactor test for reviewing such claims outlined in the court’s 1971 ruling in Lemon v. Kurtzman. That test, he noted, required courts to ask: “(1) Did the government have a secular purpose in its challenged action? (2) Does the effect of that action advance or inhibit religion? (3) Will the government action ‘excessive[ly] … entangl[e]’ church and state?”

The Supreme Court has not used the Lemon test in over two decades, said Gorsuch, adding that state and local governments should not rely on it. Nor should courts speculate about whether a “reasonable observer” would think the government was endorsing religion, a standard subject to misuse by courts. “Just dial down your hypothetical observer’s concern with facts and history, dial up his inclination to offense, and the test is guaranteed to spit out results more hostile to religion than anything a careful inquiry into the original understanding of the Constitution could sustain.”

Justice Brett Kavanaugh, in his own brief opinion, wrote separately to instruct state and local officials that even-handed treatment of religious and nonreligious people is not an establishment clause violation. “A government may not treat religious persons, religious organizations, or religious speech as second-class,” he wrote.

For Douglas Laycock, a constitutional law professor at the University of Virginia, it all could have been much simpler. “The court has held over and over, starting in the 1940s, that government cannot discriminate against religious speech,” he said. “It could have just applied that rule here, noting that Boston had never disapproved any flag in the history of the program, except for this Christian flag, treating that as obvious discrimination, and concluding much more easily than it did that Boston had created a forum for flags of all kinds.”