Supreme Court ruling: Boston violated First Amendment by refusing to fly Christian group’s flag

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BOSTON, MA — On Monday, the U.S. Supreme Court ruled unanimously that the City of Boston violated the Constitution when it refused to let a local organization fly a Christian flag in front of city hall.

The ruling was a victory for a group called Camp Constitution, which says part of its mission is “to enhance understanding of the country’s Judeo-Christian heritage,” according to an NBC News report.

The group wanted to raise a flag bearing a Latin cross during a one-hour event that would include speeches about Boston’s history from local clergy.

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NBC further reported:

“While the case had religious overtones, the decision was fundamentally about free speech rights.

“The court said the city created a public forum, open to all comers, when it allowed organizations to use a flagpole in front of City Hall for commemorative events. Denying the same treatment for the Christian flag was a violation of free expression, it said.

“‘When the government encourages diverse expression — say, by creating a forum for debate — the First Amendment prevents it from discriminating against speakers based on their viewpoint,’ Justice Stephen Breyer wrote in the decision.

“‘The city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech — though nothing prevents Boston from changing its policies going forward,’ Breyer added.”

Camp Constitution’s founder, Harold Shurtleff, had applied to use one of three flagpoles in front of city hall. 

According to NBC, two of them are for the flags of the United States and the State of Massachusetts. The city makes the third available to private organizations that conduct commemorations in the plaza in front of the building to celebrate the community’s diversity.

Shurtleff sued after the city turned down his request to fly a Christian flag.

The New American reported:

“Harold Shurtleff, co-founder of Camp Constitution and former field coordinator for the John Birch Society, asked the city for permission to fly the Christian flag for one hour on September 17 to honor Constitution Day and Citizenship Day.

“The flag raising was to be accompanied by presentations by local preachers on Boston’s Christian history. The city denied his request.

“Shurtleff, with the assistance of Liberty Counsel, a non-profit law firm, filed suit.

“Lower courts ruled against Shurtleff, claiming that the city had the right to deny permission because the word ‘Christian’ implied endorsement by the city.”

The New American also noted that Boston’s attorney, Doug Hallward-Driemeier, said that the city did not want to fly a flag that was offered as a Christian one because that wasn’t the message that the city itself wanted to communicate.

However, lawyers for Shurtleff pointed out that Boston treated the flagpole as a public forum, allowing flags from communist China and communist Cuba, a gay pride flag, a transgender flag and even the Turkish flag, which depicts the Islamic star and crescent, to be flown from the flagpole.

NBC reported:

“Boston said the choice of flags on the third pole was an expression of the city’s views. Flying the Christian flag would amount to an unconstitutional government endorsement of religion, the city said. 

“But the Supreme Court said the city could not censor a religious message in what amounted to a kind of public [forum].

“Allowing the Christian flag to fly would not be an unconstitutional government endorsement of religion because it would merely treat religious and non-religious views the same, the court said.”

Justice Brett Kavanaugh wrote in his concurring opinion:

“Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class.”

NBC noted:

“Court records showed that the city exercised virtually no control over who could use the third flagpole. In the 12 years before Camp Constitution’s request, Boston approved 284 flag raising events with no record of any denials — until the one involving the Christian flag.

“The issue of whose viewpoint was being raised on the flagpole was the critical one. When the government is speaking for itself, it is immune from claims that it violated free speech. But if it creates a public forum, it cannot discriminate against viewpoints. 

“The court has said that because slogans on car license plates are government speech, states can restrict the messages they bear.

“But it has ruled that the federal government’s grant of trademark protection is not government speech, so federal regulators cannot refuse to grant trademarks to offensive brand names.”

New York Post also confirmed that Boston had allowed the public to use the third flagpole to hoist other flags, noting that Pride Week, a community bank and emergency medical service workers have been marked by such flag-raising ceremonies since 2005:

“Boston has allowed 50 flags to be raised at 284 ceremonies between 2005 and 2017, Breyer wrote, with no record of refusing a request.

“Shurtleff and his group approached the city in 2017 seeking permission to fly a white banner with a red cross on a blue background known as the Christian flag. 

“Breyer, who is among the liberal wing of the court and who will retire about this term, said the issue comes down to whether flying the flag is an act of government or a private matter involving Shurtleff. ​

“He wrote that Boston’s ‘lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech.’

“Denying the request ‘discriminated based on religious viewpoint’ and violated the First Amendment’s free speech protections, Breyer said.​”

Boston Herald reported that “Shurtleff is a former organizer with the John Birch Society and has used his Camp Constitution website to question the Jan. 6 insurrection at the U.S. Capitol, the outcome of the 2020 election that put President Joe Biden in office, the efficacy of COVID-19 vaccines and even who was behind the Sept. 11 attacks.”

However, Boston Herald also acknowledged that Shurtleff’s questioning of other matters had no relevance to the flag issue taken up by the Supreme Court.

Due to the high court’s ruling, the City of Boston has now placed its flag-raising program on hold, noting on its website:

“Please note: Effective October 19, 2021, the City of Boston is no longer accepting flag-raising applications.

“We’re re-evaluating the program in light of the U.S. Supreme Court’s recent decision to consider whether the program as currently operated complies with Constitutional requirements.”

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