Supreme Court: Boston can't deny Christian flag if it flies other flags on City Hall flagpole
"This case is so much more significant than a flag," a representative for the Christian group said. "Boston openly discriminated against viewpoints it disfavored," when it excluded a Christian flag.
- The Supreme Court ruled Boston cannot deny a Christian flag if it raises other third-party flags.
- A mix of conservative and liberal justices joined the court's opinion.
- The Biden administration had supported the religious group in the case.
WASHINGTON – The Supreme Court on Monday ruled that Boston may not deny a Christian group the ability to raise a flag at City Hall alongside secular organizations that are encouraged to do so to celebrate the city's diversity.
The unanimous decision was the latest in a series of rulings from the high court favoring the protection of religious groups, though in this case the issue was more about the First Amendment's protection of free speech than its promise that Americans may practice their religion without government interference.
"We conclude that Boston’s flag-raising program does not express government speech," Associate Justice Stephen Breyer wrote for the court. "As a result, the city’s refusal to let (the group) fly their flag based on its religious viewpoint violated the Free Speech Clause of the First Amendment."
A mix of conservative and liberal justices joined the court's opinion, including Chief Justice John Roberts and Associate Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Amy Coney Barrett. There were no dissents.
That vote appeared to reflect the fact that the religious group had support that transcended traditional ideological and partisan lines. The Biden administration, for instance, sided with the group and against Boston in the case.
The religious group that made the request, Camp Constitution, said Boston's flagpole is a public forum, a concept in First Amendment law used by courts to help analyze when the government may regulate speech on public property. The government can't restrict speech based on a speaker's viewpoint in a public forum.
"This case is so much more significant than a flag," said Mathew Staver, the founder and chairman of Liberty Counsel, a Christian legal group that represented Camp Constitution. "Boston openly discriminated against viewpoints it disfavored when it opened the flagpoles to all applicants and then excluded Christian viewpoints."
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During the litigation Boston had countered that the flags on its flagpole are a form of government speech – not a public forum – and that city officials may choose the messages they want to convey, just as they might on the city's website. For years, the city rotated dozens of flags on a pole outside City Hall to celebrate veterans, sports teams and LGBTQ pride.
"We are carefully reviewing the court's decision and its recognition of city governments' authority to operate similar programs," said Ricardo Patrón, a spokesman for the city. "As we consider next steps, we will ensure that future city of Boston programs are aligned with this decision."
Boston said it worried that losing the case would mean it might someday be required to fly a flag from a neo-Nazi group or an al-Qaida flag. Another option: The city could avoid flying flags inconsistent with its views by not flying any third-party flags in the first place.
Breyer, a former chief judge on the Boston-based U.S. Court of Appeals for the First Circuit, said the city had limited involvement in the flag program which he said undermined its argument that the flags were a form of government speech.
"Boston acknowledges it 'hadn't spent a lot of time really thinking about' its flag-raising practices until this case," Breyer wrote. "True to its word, the city had nothing – no written policies or clear internal guidance – about what flags groups could fly and what those flags would communicate."
At times during the Jan. 18 oral argument justices from both ends of the ideological spectrum appeared exasperated with the fact that the case wasn't resolved before it reached the nation's highest court. Both conservative and liberal justices indicated the dispute could have been settled relatively easily with a few changes to Boston's policy, such as ensuring that city officials were more involved in the selection of flags.
The Supreme Court has looked favorably on claims of religious freedom in the past. In 2019, the court ruled that a Latin cross on government property outside Washington, D.C., did not have to be moved in the name of church-state separation. In 2014, the court upheld the practice of offering prayers to open government meetings, even if those prayers were overwhelmingly Christian.
But a 5-4 court held in 2015 that a specialty license plate program promoting everything from "Choose Life" to "Conserve Water" could prohibit images such as the Confederate flag because license plates are government speech. The decision drew a sharp dissent from Associate Justice Samuel Alito, joined by Roberts and two others who have since left the court.
Boston's guest flag program is relatively rare so the wider impact of the ruling is unclear. Perhaps anticipating lawsuits, more than 7 in 10 cities do not fly third-party flags, according to a survey by the International Municipal Lawyers Association.