CV NEWS FEED // The Supreme Court heard the case of a Christian group whose flag the City of Boston refused to allow in a space where numerous other kinds of flags have always been allowed.
After the justices heard oral arguments in the case of Shurtleff v. City of Boston, Andrew Chung of Reuters reported that the Court “leans toward” the Christian group disputing the city’s denial:
At issue is whether the flagpole became a public forum meriting free speech protections under the U.S. Constitution’s First Amendment to bar discrimination based on viewpoint, as the plaintiffs claimed, or whether it represented merely a conduit for government speech not warranting such protection, as Boston claimed.
Tuesday’s Hearing
The justices “appeared inclined to rule in favor of a Christian group that sued on free speech grounds,” Chung reported. “Lower courts sided with the city.” The Biden administration’s Department of Justice sides with the complainants, who want the Court to acknowledge that the City of Boston violated the First Amendment by rejecting the flag.
Supreme Court reporter Steven Mazie of the Economist shared details of Tuesday’s hearing on social media.
Liberal Justice Elena Kagan asked early on in the hearing: “Does the city really have to put a swastika flag if the flagpole is a designated public forum?” Mazie reported. Later on, Kagan also asked whether Boston should have to fly a “KKK flag.”
Conservative Justice Amy Coney Barret suggested that Boston ought to have been more explicit about its claim that the flagpole in question was only a forum for government speech, rather than inviting members of the public to fly their flags – only to deny the one request to fly a “Christian” one.
Liberal Justice Stephen Breyer pointed out that “45 of the 50 flags Boston has flown are national flags,” Mazie reported. In those cases, Breyer argued, the city didn’t “need to be too discriminating,” since national flags are unlikely to be controversial.
The liberal justices repeatedly argued that onlookers in Boston would be certain to assume whatever flag the city allowed to be flown was being flown by the government.
One of the flags Boston has allowed to fly is that of Communist China, countered conservative Justice Samuel Alito. Another was the Cuban flag. That could be “shocking” too, he pointed out.
Some justices examined the possibility of granting Boston’s claim that the flagpole is meant as a forum of government speech, and that therefore they would be within their rights to deny any flag the government chooses not to fly. But conservative Justice Neil Gorsuch asked: “Prohibiting all religious views, is that ok?”
Later in the hearing, Kagan said that “flags going up and down isn’t like putting a cross right on city hall; so it’s not an establishment clause violation and excluding religious speech is a violation of free speech,” Mazie reported. “Kagan seems to be a vote against Boston,” added Mazie. “She sure didn’t earlier in the hearing.”
Readers can click here to find the rest of Mazie’s social media thread, which he compiled live during the hearing.
Background
Liberty Counsel, the firm representing Camp Constitution and its director Harold Shurtleff, has argued that the City of Boston violated the First Amendment by “censoring a private flag in a public forum merely because the application form referred to the flag as a ‘Christian flag.’”
“For 12 years, Boston approved 284 applications with no denials—until the 2017 application by Camp Constitution,” Liberty Counsel stated last year. “The city official testified the flag would have been approved if the application did not refer to it as a ‘Christian flag.’ The word ‘Christian’ on the application alone triggered the censorship.”
As CatholicVote has reported, the CatholicVote Education Fund filed an amicus brief with the case in November 2021:
CatholicVote Education Fund’s amicus brief points out that the City of Boston discriminated against the sole Christian application to fly a flag while “permitting a wide range of secular expression with which the government agrees.”
A previous circuit court ruling was wrong to suggest that government entities can limit speech however they wish on properties made available as public forums based on a doctrine of “government speech,” the brief argues. “…If the government creates a forum for private speech, then, at a minimum, it cannot discriminate based on viewpoint to make sure the government does not skew public discussion in its favor.
“Today is a historic day and I was honored to present this religious viewpoint case before the U.S. Supreme Court,” said Liberty Counsel Founder and Chairman Mat Staver in a statement after Tuesday’s hearing:
This case is so much more significant than a flag. Boston cheated when it opened the flagpoles to all applicants and then excluded Christian viewpoints. The city then claimed that the flagpoles never were a public forum despite its history and express policy. The city’s censorship is clearly unconstitutional, and government cannot censor religious viewpoints.
