The U.S. Supreme Court heard oral arguments Tuesday on whether Boston city officials wrongfully denied a request to fly the Christian flag at City Hall.
The nation’s high court heard arguments in the case of Harold Shurtleff, et al. v. Boston, MA, et al., with the justices expressing skepticism of the arguments on both sides.
Shurtleff runs an organization called Camp Constitution, which exists to “enhance understanding of our Judeo-Christian moral heritage” and runs Constitution Day and Citizenship Day events at City Hall.
Shurtleff’s request to fly the Christian flag (which features a cross) outside of City Hall on Constitution Day 2017 was denied based on a policy that gives the city discretion on which flags it can fly on the City Hall flagpoles.
Liberty Counsel Chairman Mat Staver, a prominent Christian conservative lawyer whose organization helped represent Shurtleff, was the first to present arguments before the justices.
“After 12 years, with 284 flag-raising approvals, no denials, and usually no review, one word caught the attention of a Boston official: the word ‘Christian’ on the application. The flag itself was not the problem. Had it been called anything but Christian, the same flag would have flown for an hour without incident,” Staver argued.
“The city, by an unbroken history and practice and policy, expressly declared that the flagpoles are one of its public forums open to all applicants. In doing so, the city long ago crossed the line from government speech to private speech.”
Justice Elena Kagan, one of three justices appointed by a Democrat president, asked Staver if the city would have to fly a Nazi flag at City Hall due to it being a public forum. Staver replied that the city would have to fly such a controversial flag since it designated the flagpole as a public forum.
“So, really, what you’re saying is that a city can’t possibly have a kind of open policy like this because no city is going to want to put up a swastika or a KKK flag or something like that,” Kagan reasoned.
“The city’s brief tries to indicate certain limitations on categories of subject matters,” Staver replied. “But that’s nowhere to be found in the 12-year or 13-year policy, and it’s not in the 2018 codification of that policy, anyway.”
“If the city wants to open up a forum but limit it to certain kinds of subject matters or speakers, certainly, the city is capable of doing so,” he added.
Sopan Joshi, the assistant to the U.S. solicitor general, argued in support of Shurtleff as a representative of the federal government.
“Like any private property owner, the government is entitled to use its own property for whatever lawful purpose it likes, including for expressive purposes,” Joshi told the court.
“But this Court has said that, unlike a private property owner or a private speaker, when the government chooses to open up its own property for use by third parties to express their messages, the government cannot restrict access based on viewpoint, including religious viewpoints.”
When Justice Neil Gorsuch asked if the city could limit speech to reject religious viewpoints, Joshi responded that the Supreme Court “has said that even in a non-public forum, viewpoint discrimination is impermissible.”
Representing the city, lawyer Douglas Hallward-Driemeier told the justices that groups “cannot commandeer the city’s flagpole to send a message the city does not endorse.”
“It’s not any individual flag. That’s the city’s message. The city’s statement of its goals is clear. It’s the collective. It’s the diversity of the flags,” stated Hallward-Driemeier.
Shurtleff’s legal team had argued that the city has flown other flags with religious imagery in the past, including Turkey's flag, which depicts the Islamic star and crescent, and the Portuguese flag. Additionally, the Boston city flag includes Latin words meaning “God be with us as he was with our fathers.”
“We also want to raise awareness in Boston and beyond about the many countries and cultures of the world,” Hallward-Driemeier said. “Our goal is to foster diversity by celebrating the communities within Boston.”
Justice Clarence Thomas, one of the court’s most conservative judges, asked Hallward-Driemeier why the apparent definition of diversity appeared to exclude Christians.
“The city chose not to start down the road of speaking on the subject of religion from the flagpole,” responded Hallward-Driemeier, who added that Boston would not exclude religious groups from raising a flag at city hall.
“In fact, in connection with Constitution Day, the city said it was willing to raise a flag of Camp Constitution in celebration and recognition of Constitution Day.”
Thomas pressed the attorney on if the city was only celebrating “limited diversity.”
“They’re celebrating a particular kind of diversity, national origin diversity,” he said.
In February 2020, U.S. District Court Judge Denise Casper, an Obama appointee, ruled in favor of Boston. She argued that the City Hall flagpoles constituted “government speech” and made flying a Christian flag an unlawful government endorsement of religion.
“There are no additional facts in the record that would suggest any improper preference for non-religion over religion or selective treatment of any person or group based on religion,” ruled Casper.
In January 2021, a three-judge panel of the U.S. Court of Appeals for the 1st Circuit unanimously upheld the lower court ruling, with Reagan appointee Judge Bruce Selya writing the panel opinion.
Selya argued that the “three flags flying in close proximity communicates the symbolic unity of the three flags,” and therefore, it “strains credulity to believe that an observer would partition such a coordinated three-flag display.”
Shurtleff appealed to the U.S. Supreme Court, gaining the support of the progressive legal nonprofit the American Civil Liberties Union. Last November, the ACLU filed an amicus brief supporting the Christian group.
“We have long expressed concern about government endorsement of religion, and have sued often to enforce the Establishment Clause,” stated ACLU National Legal Director David Cole.
“But when the government opens a forum to private speakers generally, as Boston did here, it can’t turn away a speaker simply because it is religious.”