HIGH COURT RULES AGAINST BOSTON ON CHRISTIAN FLAG
The Supreme Court unanimously ruled on Monday that the city of Boston had violated the First Amendment when it refused to let a private group raise a Christian flag in front of its City Hall.
One of the three flagpoles in front of the building, which ordinarily flies the flag of Boston, is occasionally made available to groups seeking to celebrate their backgrounds or to promote causes like gay pride. In a 12-year period, the city approved 284 requests to raise flags on the third flagpole.
It rejected only one, from Camp Constitution, which says it seeks “to enhance understanding of our JudeoChristian moral heritage.” The group’s application said it sought to raise a “Christian flag” for one hour at an event that would include “short speeches by some local clergy focusing on Boston’s history.” The flag bore the Latin cross.
Justice Stephen Breyer, writing for six members of the court, said the central question in the case, Shurtleff v. City of Boston, No. 20-1800, was whether the city had created a public forum by allowing private groups to use its flagpole or was conveying its own speech by choosing and endorsing the flags it approved. When the government is speaking for itself, it is immune from First Amendment scrutiny.
Breyer concluded that the Christian flag was private speech in a public forum and that the city’s refusal to let “Camp Constitution f ly their f lag based on its religious viewpoint violated the free speech clause of the First Amendment.”
The court should consider three factors in deciding whether a given message is government speech, Breyer wrote: the history of the practice in question, whether observers were likely to believe that the messages reflected the government’s views and how much the government controlled the messages. The third factor was “the most salient feature of this case,” Breyer wrote, and it cut sharply against the city.
“All told,” he wrote, “while the historical practice of flag flying at government buildings favors Boston, the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag railings as private, not government, speech — though nothing prevents Boston from changing its policies going forward.”
Breyer stressed that governments must be free to take sides when they speak for themselves.
“When the government wishes to state an opinion, to speak for the community, to formulate policies or to implement programs, it naturally chooses what to say and what not to say,” he wrote.
“That must be true for government to work. Boston could not easily congratulate the Red Sox on a victory were the city powerless to decline to simultaneously transmit the views of disappointed Yankees fans.”