The Supreme Court ruled unanimously that the city of Boston violated a group’s First Amendment rights by denying its request to fly a Christian flag at City Hall.
The U.S. high court delivered its opinion on Monday, overturning a lower court decision in favor of the city. The Supreme Court found that, contrary to arguments made by city attorneys, the city’s flag-waving program constituted an expression of private speech, not government speech, and therefore could not limit participants based on Establishment Clause concerns.
“We conclude that, on balance, Boston did not make the raising and flying of private groups’ flags a form of government speech. That means, in turn, that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint ‘abridg[ed]’ their ‘freedom of speech,’” Supreme Court Justice Stephen Breyer wrote in the court’s opinion.
The case arose out of a 2017 incident when the city of Boston denied the request of a local group, Camp Constitution, to fly what the group described as a “Christian flag” outside of Boston City Hall. The city had a custom of allowing groups to use one of the three flag poles outside of City Hall to fly an event, organization, or movement-specific flag for special occasions.
From 2005 to 2017, the city flew about 50 different flags for nearly 300 activities and celebrations. Flags granted approval to fly outside the city hall included those from countries such as China, Cuba, and the LGBT group Boston Pride.
Boston city officials worried, however, that when they received a request to fly an explicitly “Christian flag,” approving the request would consist of government speech and violate prohibitions against an official state religion. Camp Constitution co-founder and director Harold Shurtleff disagreed and sued the city, alleging it had unfairly and illegally targeted his organization for censorship because of its Christian ties.
“A Boston official believed that the City would violate the Establishment Clause if it allowed a religious flag to briefly fly outside of City Hall as part of the flag-raising program that the City had opened to the public,” Supreme Court Justice Brett Kavanaugh wrote in a concurring opinion. “So Boston granted requests to fly a variety of secular flags, but denied a request to fly a religious flag. 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.”
“On the contrary, a government violates the Constitution when (as here) it excludes religious persons, organizations, or speech because of religion from public programs, benefits, facilities, and the like,” Kavanaugh continued. “Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class.”