May 2, 2022 - Politics & Policy

Supreme Court says Boston violated First Amendment in Christian flag case

Picture of the Supreme Court building

Photo: Stefani Reynolds/AFP via Getty Images

The Supreme Court on Monday unanimously ruled that Boston violated the First Amendment when it said a local organization could not fly a Christian flag in front of City Hall.

Driving the news: Justice Stephen Breyer, who delivered the opinion of the court, said that Boston "violated the Free Speech Clause of the First Amendment" by not allowing Camp Constitution, which says its goal is "to enhance understanding of our Judeo-Christian moral heritage," to fly their flag "based on religious viewpoints."

Catch up fast: The group wanted to raise a flag that contained a red cross on a blue field against a white background during a one-hour event at Boston's City Hall, which has three flagpoles, with one of them being available to private organizations.

  • The commissioner of Boston's Property Management Department said no because he worried that flying a religious flag at City Hall would violate the Constitution's Establishment Clause, which prohibits a government from establishing an official religion.
  • Camp Constitution and the group's director, Harold Shurtleff, sued the city of Boston, claiming it violated its free speech rights.

Details: "For years, Boston has allowed private groups to request use of the flagpole to raise flags of their choosing," Breyer wrote, noting that the city did not deny a single request until Shurtleff's in 2017.

  • Breyer said that, at the time, Boston did not have any written policy on limiting the use of one of their City Hall flag poles based on the content of a flag.

Context: The case, Shurtleff v. Boston, focused on whether the city uses its flag poles to fly flags that communicate governmental messages or instead, opens their use for citizens to express their own beliefs.

  • If the city flies flags to communicate its own messages, it is immune from free speech violation claims. But, if it creates an open forum, Boston cannot discriminate based on different perspectives, the court ruled.

What they're saying: "Boston concedes that it denied Shurtleff's request solely because the Christian flag he asked to raise 'promoted a specific religion' ... Under our precedents ... that refusal discriminated based on religious viewpoint," Breyer said.

  • "[D]enying Shurtleff's application to use that forum constituted impermissible viewpoint discrimination," Justice Samuel Alito said, concurring with the court's judgment.
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