High Court Says Boston Discriminated by Religious Viewpoint in Flag Dispute

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court ruled today in Shurtleff v. City of Boston that the City violated free speech when it refused to permit an organization to fly a religious flag on one of its flagpoles. The ruling is a victory for the organization. Going forward, however, the City can either permit organizations to fly religious flags as part of its third-party-flag-flying program, redesign the program so that flag-flying amounts to government speech, or drop the program entirely and fly only U.S., state, and city flags.

The case raised religious-freedom issues, but only in the context of viewpoint discrimination (by religion) of free speech, not as separate religion-clause questions. Still, three Justices weighed in on the Establishment Clause, one (Justice Kavanaugh) to promote a neutrality approach, and two (Justices Gorsuch and Thomas) to denounce the Lemon test.

The case arose when Harold Shurtleff, director of an organization called Camp Constitution, requested permission to fly a Christian flag on one of the three flagpoles outside Boston City Hall. Although the City had long permitted various outside organizations to fly their own flags on one of the flagpoles, it declined Shurtleff's request out of fear of violating the Establishment Clause. Shurtleff sued, arguing that the denial violated free speech.

The Court today agreed. Justice Breyer wrote for the Court and first said that an outside flag flying on the city's flagpole did not amount to government speech. (The First Amendment does not restrict the government in its own speech. So if the flagpole amounted to government speech, the City would've prevailed against Shurtleff's free speech claim.) The Court looked to three types of evidence, drawn from Pleasant Grove City v. Summum and Walker v. Texas Div., Sons of Confederate Veterans, Inc., to determine whether the flag was government speech: (1) the history of flag-flying at City Hall; (2) the public's likely perception about whose speech (the City, or the private organization) a flag represented; and (3) the extent to which the City "actively shaped or controlled the expression." The Court held that the evidence went both ways, but "[a]ll told, Boston's lack of meaningful involvement in the selection of flags or the crafting of their messages leads the Court to classify the third-party flag raisings as private, not government, speech."

The Court went on to hold that the City's denial amounted to impermissible viewpoint discrimination, on the basis of religion.

The Court pointed out that the City could change its policies going forward and turn its flagpoles into pure government speech, thus dodging any free-speech restrictions on its program.

The ruling was unanimous, but four Justices added their own views. Justice Kavanaugh, writing only for himself, argued that the whole dispute "arose only because of a government official's mistaken understanding of the Establishment Clause." He wrote: "As this Court has repeatedly made clear, however, a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like."

Justice Alito, joined by Justices Thomas and Gorsuch, argued that the Court's three-factor test for determining when speech is government speech was wrong. He pushed for this test: "government speech occurs if--but only if--a government purposefully expresses a message of its own through persons authorized to speak on its behalf, and in doing so, does not rely on a means that abridges private speech."

Finally, Justice Gorsuch, joined by Justice Thomas, took aim at the Lemon test. He said that Boston's conclusion that flying Camp Constitution's Christian flag would violate the Establishment Clause rested on this flawed--and "abandoned"--test.