Supreme Court hears argument in case involving request to fly Christian flag at Boston City Hall

This week the U.S. Supreme Court heard oral argument in Shurtleff v. Boston, a lawsuit challenging the city of Boston’s refusal to temporarily fly the Christian flag alongside the United States flag and Massachusetts state flag at its city hall.

Boston argues that the flags at city hall represent the government’s speech, and therefore it is appropriate to avoid the appearance of endorsing a particular religious perspective. The plaintiff, a civic organization called Camp Constitution, says the city’s practice is to allow diverse groups to temporarily fly their flags, and therefore the denial of the Christian flag amounts to viewpoint discrimination forbidden by the free speech doctrine of the First Amendment.

As BJC General Counsel Holly Hollman explained in a Salon article, this is a free speech case; “the government’s interest in not promoting religion is sort of a backdrop.”

The question boils down to whether whatever flies atop Boston’s municipal flagpoles represents government speech from the city itself or just that of private individuals who are participating in a public forum the city has provided. If the flagpole is deemed to be government speech, Hollman said, there’s no question about whether the city can be compelled to “speak” about religion — in fact it would be prohibited from doing so. But if the court rules that Boston had unwittingly “designated some kind of forum for private speech, then free speech rules would require them to let people in, regardless of their viewpoint.”

More concerning, she added, is the underlying motives of Camp Constitution and others who may see this dispute as a means of promoting its “idea that our nation is somehow tied up in Christianity, legally… .” For more on Camp Constitution, check out this eye-opening background piece from Brian Kaylor and Beau Underwood at Word&Way.

As for the Court, justices were concerned with how to draw the line between government speech, which they appeared to agree could be controlled by the city, and private speech, which everyone agreed could not lawfully exclude religious expression, considering that the program in question is administered by government officials on government property.

Here are a few highlights from the argument transcript:

In questioning a Department of Justice attorney (the Biden administration filed a brief supporting the plaintiff), justices wrestled with the problem of who controls the speech in this particular case, and what will reasonable observers think, when they see various flags flying at Boston City Hall:

JUSTICE GORSUCH: Counsel, what — what’s at stake in that line between public forums and government speech? On the one hand, you emphasize the government’s right and entitlement to edit speech of its own. But what — what happens when that doctrine goes too far? Why does the government think that this properly belongs on the other side of the line?

 

MR. JOSHI: … I think, in this particular case, as in all cases, the question is going to be highly fact-bound, and it’s going to depend on really the answer to the question who is speaking. In this case, every time one of those 284 flags went up the flagpole, was that Boston speaking each of those times, or was it the third party flag it was?

 

JUSTICE GORSUCH: Why does the government come down on that side of the line, though? What are the factors you think that we should be using to guide us in drawing that very difficult line between these two doctrines?

 

MR. JOSHI: … I think there are a number of facts in the record that would tip the scales toward believing that — that Boston created a forum, even if it’s a non-public forum. The 284 approvals in a row, of course. The fact that Rooney would approve these in an almost ministerial manner without ever looking at the flags, without requiring that the actual flag design be shown, is underscored by the fact that Petitioners’ flag apparently would have passed muster but for its description as a Christian flag in the accompanying e-mail. The fact that flags raised in the flag-raising ceremony were, generally speaking, at the request of a third party and not initiated by the City itself.

 

JUSTICE KAGAN: So, Mr. Joshi, suppose you’re right as to all of those things, that there was essentially no control from the city government here and — and that pushes strongly in the direction of, well, it’s not government speech if government doesn’t control it. But suppose, on the other hand, one thinks that reasonable observers would think that this was government speech….The person walking by City Hall every day does not know about the contours of the flag-raising program. It just knows, on Monday through Thursday, I saw the City of Boston flag and now I see another flag. Surely, that’s just the City of Boston deciding to fly another flag instead of its own flag.

 

MR. JOSHI: … I think it would be a little bit problematic if we allowed — and realize I’m speaking on behalf of the United States here — but we take this Court’s cases to say that the First Amendment should not allow a government to evade the strictures of the First Amendment and the prohibition on viewpoint discrimination simply by being innovative in — in its program or by fooling the public or by having a secret program on the side that only a few people know about. The fact is, once the government or the City of Boston here in particular has chosen to open up its flagpole for use by third parties, the First Amendment imposes certain restrictions on how it can run that program.

In questioning the city of Boston’s attorney, Justice Elena Kagan suggested that the practice of flying many flags proposed by many groups is a challenge to the city’s position that they are maintaining control of the flag-raising program:

JUSTICE KAGAN: …You know, we have a line in one of our opinions that says a City Hall… can’t have a cross on the roof. And so some — you know, somebody looks at this — Mr. Rooney looks at this and says isn’t this kind of the same thing and prohibits it. And, in fact, it’s not the same thing because it’s in a flagpole where different flags are coming up and going down all the time and expressing a wide variety of views and organizations and so forth.

…

MR. HALLWARD-DRIEMEIER: Your Honor, the City would be …happy to clarify that policy … What the City cannot afford is the idea that the flagpole has become a place where, to use Your Honor’s hypothetical, the swastika flag… the Confederate flag, ISIS, al Qaeda, all of these could be flown. And it’s not to say that the Christian flag is any of this. As a person of faith, that is not what we are saying. What we are saying is that the outcome in this case has to be the same, whether this is the Christian flag, the Summum flag, the Confederate flag… or the New York Yankees flag… The City feels that it must retain that control. It felt that it did have that control because the — the parameters were clear enough.

You can read the entire oral argument here. Or listen to audio here. Plus, Amanda and Holly will have more on next week’s epsidoe of the Respecting Religion podcast. A ruling is expected by the end of the Court’s term in June.