ACLU backs this cross flag

The ACLU has long fought to enforce the separation of church and state. We were the plaintiff in both Allegheny County v. ACLU and McCreary County v. ACLU, in which the Supreme Court held that the Constitution’s establishment clause barred the displays of a creche and the Ten Commandments in county courthouses. So why are we supporting a Christian organization’s argument in the Supreme Court case Shurtleff v. Boston that it has a right to display a flag bearing the Latin cross in front of Boston’s City Hall? The short answer: The First Amendment requires it.

For more than a decade, Boston has made one of the flagpoles in front of City Hall available to the public for temporary displays, essentially on a first-come, first-served basis. It has flown political flags, national flags and the flags of private civic organizations — including the Chinese Progressive Association, the National Juneteenth Observance Foundation, Bunker Hill Association and Boston Pride. The city’s website and application materials refer to the flagpole as a “public forum,” and invite members of the public to apply to fly their flags there temporarily — usually for just a few hours on a given day. Over a 12-year period, the city displayed 284 such flags, and never denied a single request. In most instances, it did not even ask to see the flags before approving their display.

Until Camp Constitution came along. A conservative Christian organization that celebrates the United States’ “Judeo-Christian” heritage, questions covid-19 vaccinations and criticizes the theory of evolution, the group applied to fly its flag, bearing the Latin cross — the simplest, most common representation of the Christian symbol — for one hour on a day when its members planned to hold an event in Boston. The city refused, not because it disapproved of the camp’s views, but because the flag was religious. The city was concerned that flying such a flag would contravene the First Amendment’s establishment clause.

We take the establishment clause, which requires separation of church and state, very seriously. We’ve opposed opening city council meetings with religious prayers, promoting religion in public schools, and many official displays of religious symbols. But in the Boston case, another part of the First Amendment — the free speech clause — controls.

Religious expression cannot be completely excluded from public property. If that were the case, the government could ban Jehovah’s Witnesses from handing out religious tracts on public sidewalks. And free speech principles prohibit the government from discriminating against speakers because of their messages — including religious messages.

The central issue is whether the religious expression is properly attributed to the government or to private speakers. Where the government itself is “speaking,” the establishment clause generally prohibits religious messages, and the free speech clause generally does not apply. But where private speech is involved, establishment clause concerns are diminished, and the free speech clause requires the government to treat all speakers equally.

We argue that no reasonable observer would understand flying Camp Constitution’s flag — for just one hour on a single day — to be the government’s speech. Like the 284 flags flown before it, this group’s flag would be seen as just that — the group’s flag. And as such, the city can’t turn it down because the flag is religious.

The U.S. Court of Appeals for the 1st Circuit nonetheless ruled for the city last January, concluding that the flag displays did amount to government speech — so the city could choose which flags to display as its own speech, without regard to the rights of the private flagholders. On this theory, the city could also have refused to display the Boston Pride flag, or any other.

But that is a dangerous expansion of the “government speech” doctrine. It would give cities an easy way out of the long-standing First Amendment obligation to treat all private speakers equally in public forums — by simply re-characterizing private speech on government property as the government’s speech.

We have no doubt that the city acted with the best intentions. And if Camp Constitution had sought to fly its flag for a month, or if the flags displayed in front of Boston City Hall were predominantly religious, the establishment clause would be violated. But treating Camp Constitution’s request the same as all other flag displays is required by the free speech clause, and does not transgress the establishment clause.

When the Supreme Court hears argument on Jan. 18, it should recognize that, having chosen for more than a decade to allow everyone else to display their private flags, Boston can’t turn away Camp Constitution merely because its flag is religious.