Unanimous SCOTUS: Boston discriminated against Christians in flag-flying process

AP Photo/Andrew Harnik

It’s indisputably a big win for the First Amendment, but … which part? Another 9-0 victory for religious expression, or a unanimous verdict against government as arbiters of speech? Let’s call it both, although NBC News takes pains to emphasize the latter. In a unanimous opinion written by liberal Justice Stephen Breyer, the Supreme Court ruled that the city of Boston violated the Constitution by barring a Christian group from a flag-flying program meant to celebrate “diversity.”

Oh, the irony:

The Supreme Court ruled unanimously on Monday 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.

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, the court said.

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.” 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.

Excluding Christians from a civic process that supposedly celebrates diversity is *chef’s kiss* perfect for today’s woke governing clique. Breyer leads off with this irony in his ruling opinion, noting the difference between “government speaking for itself” and a government inviting an open forum on the basis of diversity:

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. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 828–830 (1995). But when the government speaks for itself, the First Amendment does not demand airtime for all views. After all, the government must be able to “promote a program” or “espouse a policy” in order to function. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. 200, 208 (2015). The line between a forum for private expression and the government’s own speech is important, but not always clear.

This case concerns a flagpole outside Boston City Hall. For years, Boston has allowed private groups to request use of the flagpole to raise flags of their choosing. As part of this program, Boston approved hundreds of requests to raise dozens of different flags. The city did not deny a single request to raise a flag until, in 2017, Harold Shurtleff, the director of a group called Camp Constitution, asked to fly a Christian flag. Boston refused. At that time, Boston admits, it had no written policy limiting use of the flagpole based on the content of a flag. The parties dispute whether, on these facts, Boston reserved the pole to fly flags that communicate governmental messages, or instead opened the flagpole for citizens to express their own views. If the former, Boston is free to choose the flags it flies without the constraints of the First Amendment’s Free Speech Clause. If the latter, the Free Speech Clause prevents Boston from refusing a flag based on its viewpoint.

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.” U. S. Const., Amdt. I.

Put Breyer firmly in the “free speech” camp, in other words. It’s a worthy ruling in that regard, too, which shouldn’t be dismissed. However, it’s worth asking why Boston refused this particular request, especially since — as Breyer notes — it was apparently the first and only time in almost 300 applications that the city had denied access:

For years, since at least 2005, the city has allowed groups to hold flag-raising ceremonies on the plaza. Participants may hoist a flag of their choosing on the third flagpole (in place of the city’s flag) and fly it for the duration of the event, typically a couple of hours. Most ceremonies have involved the flags of other countries—from Albania to Venezuela—marking the national holidays of Bostonians’ many countries of origin. But several flag raisings have been associated with other kinds of groups or causes, such as Pride Week, emergency medical service workers, and a community bank. All told, between 2005 and 2017, Boston approved about 50 unique flags, raised at 284 ceremonies. Boston has no record of refusing a request before the events that gave rise to this case. …

As part of the ceremony, the organization wished to raise what it described as the “Christian flag.” Id., at 131a. To the event application, Shurtleff attached a photo of the proposed flag: a red cross on a blue field against a white background.

The commissioner of Boston’s Property Management Department said no. The problem was “not the content of the Christian flag,” but “the fact that it was the Christian flag or [was] called the Christian flag.” App. in No. 20–1158 (CA1), at 212–213 (deposition of then-commissioner Gregory T. Rooney, hereafter Rooney deposition). The commissioner worried that flying a religious flag at City Hall could violate the Constitution’s Establishment Clause and found no record of Boston ever having raised such a flag. He told Shurtleff that Camp Constitution could proceed with the event if they would raise a different flag. Needless to say, they did not want to do so.

And so we do get to the issue of religious expression after all. The city apparently didn’t want to be seen as endorsing the Christian message, even while “endorsing” all sorts of other messages in the name of diversity. As Justice Brett Kavanaugh notes in his brief concurrence, the real issue here is an attempt to treat religious speech as somehow second-class:

This dispute arose only because of a government official’s mistaken understanding of the Establishment Clause. 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. 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. See, e.g., Zelman v. Simmons-Harris, 536 U. S. 639 (2002). 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. See, e.g., Espinoza v. Montana Dept. of Revenue, 591 U. S. ___ (2020); Good News Club v. Milford Central School, 533 U. S. 98 (2001); McDaniel v. Paty, 435 U. S. 618 (1978). Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class.

Justice Samuel Alito agrees with the outcome, but vociferously objects to the process used by Breyer. The precedents that Breyer uses to set up a test for whether speech is “government speech” were never intended for that purpose. In fact, Alito warns that such a test opens a wide door for government to censor private speech. “Government speech” is best defined literally, Alito argues:

Under the resulting view, 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.

Defined in literal terms, “government speech” is “speech” spoken by the government. “Speech,” as that term is used in our First Amendment jurisprudence, refers to expressive activity that is “intended to be communicative” and, “in context, would reasonably be understood . . . to be communicative.” Clark v. Community for Creative Non-Violence, 468 U. S. 288, 294 (1984); see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S 557, 569 (1995). Our government-speech precedents have worked with largely the same definition. See, e.g., Summum, 555 U. S., at 472 (accepting monument for placement in a city park “constitute[d] government speech” because the monuments were “meant to convey and have the effect of conveying a government message”); Walker, 576 U. S., at 214 (similar). And although this definition of “speech” is not fully precise, the purposeful communication of the speaker’s own message generally qualifies as “speech.”

For “speech” to be spoken by the government, the relevant act of communication must be government action. Governments are not natural persons and can only communicate through human agents who have been given the power to speak for the government. When individuals charged with speaking on behalf of the government act within the scope of their power to do so, they “are not speaking as citizens for First Amendment purposes.” Garcetti v. Ceballos, 547 U. S. 410, 421 (2006). And because “speech” requires the purposeful communication of the speaker’s own message, the message expressed must have been formulated by a person with the power to determine what messages the government will communicate. In short, the government must “se[t] the overall message to be communicated” through official action. Johanns, 544 U. S., at 562.

Under this reasoning, Boston didn’t have a leg to stand on when blocking private speech in a process by which the city encouraged the latter as non-government speech. Alito includes government-created “forums” in the latter:

For analogous reasons, private-party expression in any type of forum recognized by our precedents does not constitute government speech. A forum, by definition, is a space for private parties to express their own views. The government can of course speak as a participant in a forum, but the creation of a space for private discourse does not involve expressing a governmental message, deputizing private parties to express it, or adopting a private party’s contribution as a vehicle of government speech. So when examination of the government’s “policy and practice” indicates that the government has “intentionally open[ed] a nontraditional forum for public discourse,” a court may immediately infer that private-party expression in the forum is not government speech. Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 802 (1985). There is no need to consider history, public perception, or control in the abstract.

Justices Neil Gorsuch and Clarence Thomas put aside the free speech arguments entirely to focus on the suppression of religious expression. They both assign blame to the city and to the Supreme Court itself for Boston’s misinterpretation of the Establishment Clause, and argue that the court needs to speak more clearly in the future:

The real problem in this case doesn’t stem from Boston’s mistake about the scope of the government speech doctrine or its error in applying our public forum precedents. The trouble here runs deeper than that. Boston candidly admits that it refused to fly the petitioners’ flag while allowing a secular group to fly a strikingly similar banner. And the city admits it did so for one reason and one reason only: It thought displaying the petitioners’ flag would violate “‘the [C]onstitution’s [E]stablishment [C]lause.’” App. to Pet. for Cert. 157a; see also id., at 153a–154a. That decision led directly to this lawsuit, all the years of litigation that followed, and the city’s loss today. Not a single Member of the Court seeks to defend Boston’s view that a municipal policy allowing all groups to fly their flags, secular and religious alike, would offend the Establishment Clause.

How did the city get it so wrong? To be fair, at least some of the blame belongs here and traces back to Lemon v. Kurtzman, 403 U. S. 602 (1971). Issued during a “‘bygone era’” when this Court took a more freewheeling approach to interpreting legal texts, Food Marketing Institute v. Argus Leader Media, 588 U. S. ___, ___ (2019) (slip op., at 8), Lemon sought to devise a one-size-fits-all test for resolving Establishment Clause disputes. That project bypassed any inquiry into the Clause’s original meaning. It ignored longstanding precedents. And instead of bringing clarity to the area, Lemon produced only chaos. In time, this Court came to recognize these problems, abandoned Lemon, and returned to a more humble jurisprudence centered on the Constitution’s original meaning. Yet in this case, the city chose to follow Lemon anyway. It proved a costly decision, and Boston’s travails supply a cautionary tale for other localities and lower courts. …

The only sure thing Lemon yielded was new business for lawyers and judges.

Frankly, I’m fine with “both” in this instance. This is the rare instance in which that applies fully. However, the court would be wise in the future to follow Alito’s formula for defining “government speech,” and the Gorsuch/Thomas approach to religious expression. Will they? The unanimous verdict in this case will hopefully prove very instructive to lower courts on all of these points.