Why the Supreme Court ruled a flag ban won’t fly

The idea, the city said cheerily, was to “foster diversity,” “create an environment in the City where everyone feels included,” and promote harmony “among Boston’s many communities.” What could possibly go wrong? In today’s prickly America, enough to require the Supreme Court to referee the dispute.

It so did on Monday, giving the city a tutorial about the obvious: Public forums are open to

the public. Boston did, however, bring unity: The court spoke unanimously, through an opinion by retiring Justice Stephen G. Breyer, who is heading home to an edified Boston.

There, at City Hall, from time to time — 284 times in 12 years, before a problem occurred — the city allowed various groups to fly their flags from where the city’s usually flies. The flags of China and Cuba have flown there. The 285th request was from a group wishing to celebrate Christians’ contributions to Boston, by flying what the group’s leader calls a “Christian flag.”

Calling it this probably made a city official skittish. The mere fact that the flag includes a cross would not have alarmed the employee of a city whose flag includes Latin words that translate as “God be with us as he was with our fathers.” And the Bunker Hill flag, which contains the St. George’s cross, is quite similar to the “Christian flag,” but not so described. The categorization of the flag as “Christian” caused the Boston official to flinch from the possibility of becoming entangled with the migraine-inducing nuances of establishment clause jurisprudence. So, one word on the application was the reason the city censored the flag.

One can sympathize with him. The constitutional injunction that there shall be no laws “respecting an establishment of religion” has produced much hairsplitting, as when the court in the 1970s held that public funds could be used to provide books for parochial schools, but not maps. A bemused Sen. Daniel Patrick Moynihan, D-N.Y, wondered: What about atlases, which are books of maps?

The Christian flag people say that the city has described this one pole as one of the city’s “public forums” for “all applicants.” But the city says: Not so, the forum is only the ground around the pole. A federal appeals court sided with the city, saying that whatever is run up the city’s pole constitutes government speech, and governments can say what they like as long as they avoid endorsing religion. Nine justices disagreed, saying that the city created a public forum open to all.

The three-pronged test of whether a government involvement with religion avoids violating the establishment clause is: The involvement must have a “secular legislative purpose,” its “primary effect” must not advance or inhibit religion, and it must not foster “excessive government entanglement with religion.” Breyer easily concluded that brief flag-raising ceremonies — unlike, say, government supervision of messages on license plates that government requires drivers to purchase, or the placement of permanent monuments in public parks — are not government speech. They are constitutionally protected private speech by participants in the ceremonies, hence do not implicate the establishment clause.

In a trenchant concurrence, Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch, provides a properly restrictive definition of “government speech,” one that, were it adopted by the court, would prevent government from expansively claiming to be speaking when it really is not. This would prevent government, as in this case, from subjecting private speakers to viewpoint discrimination. This is Alito’s definition: “Government speech occurs if — but only if — a government purposefully expresses a message of its own through persons authorized to speak on its behalf.”

In another concurrence, Gorsuch argues for abandoning the three-prong test of establishment. Its complex cleverness has, he says, produced “chaos” by not being “humble” enough to adhere to the establishment clause’s original meaning. Look above at the phrases in quotation marks in the three-pronged test. Now, Gorsuch’s criticism:

“It’s hard not to wonder whether some simply prefer the policy outcomes [the test] can be manipulated to produce.” That is, the test’s elastic terms are amenable to stretching enough to frequently find “establishment” of religion. Gorsuch quotes the eminent legal scholar Michael W. Mcconnell: “No one at the time of the founding is recorded as arguing that the use of religious symbols in public contexts was a form of religious establishment.”

It is axiomatic that hard cases often make bad law. Boston’s flag case was easy, but beneath the surface unanimity, within the concurrences, there bubbled a ferment of disagreement that might be a harbinger of better law resulting from renewed respect for the original meaning of “establishment.”