The Washington PostDemocracy Dies in Darkness

Supreme Court says Boston was wrong to refuse raising Christian group’s flag

Flags fly outside City Hall in Boston. (Elise Amendola/AP)
6 min

The Supreme Court ruled unanimously Monday that it was unconstitutional for the city of Boston to deny a ceremonial city hall flag-raising request from a Christian group when it had never turned down any other organization.

Justice Stephen G. Breyer wrote the majority opinion against his adopted hometown, rejecting the city’s contention its flag-raising program was a form of government speech. If that were the case, the city could choose which viewpoints it would support by allowing the organization to fly its banner on the vast plaza in front of city hall.

But Breyer wrote that the city’s program instead essentially welcomed all comers except one, and that violated the First Amendment protection of free speech.

“All told, while the historical practice of flag flying at government buildings favors Boston, the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech — though nothing prevents Boston from changing its policies going forward,” Breyer wrote.

The case involves three flagpoles on a plaza outside Boston City Hall. One flies the U.S. flag, one the Massachusetts flag and most of the time the third flies the city’s flag.

Occasionally, the city replaces its own flag with another after a group applies to hoist its own banner for a brief time, usually in connection with an event.

From 2005 to 2017, the city approved 284 consecutive requests. But then Harold Shurtleff, who leads a conservative group called Camp Constitution, applied to raise a white flag with a red cross on a blue square in the upper left corner, which he noted was a “Christian flag.”

He was turned down, on the grounds it would appear that the city was endorsing one religion over another.

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Lower courts said the city had that prerogative. But Shurtleff’s case united conservative religious groups with the American Civil Liberties Union and the Biden administration, all of which said the city was wrong.

Breyer said Boston, like other governments, has the right to control its own messages to the public, without worrying about giving equal time to opposing views.

“When the government wishes to state an opinion, to speak for the community, to formulate policies, or to implement programs, it naturally chooses what to say and what not to say,” Breyer wrote. “That must be true for government to work. Boston could not easily congratulate the Red Sox on a victory were the city powerless to decline to simultaneously transmit the views of disappointed Yankees fans.”

But in this case, the city had no written policy on whether to accept a group’s request to fly its banner, and put little thought into whether granting the request complied with the city’s viewpoint. Foreign nations, LGBTQ groups and a community bank all hoisted their flags before Camp Constitution was turned down.

Instead, the city “concedes that it denied Shurtleff’s request solely because the Christian flag he asked to raise promoted a specific religion,” Breyer wrote. “Under our precedents, and in view of our government-speech holding here, that refusal discriminated based on religious viewpoint and violated the Free Speech Clause.”

Breyer’s Boston roots were apparent throughout the opinion, as well as his detailed description of the area in question.

“Built in the late 1960s, Boston City Hall is a raw concrete structure, an example of the brutalist style,” he wrote. “Critics of the day heralded it a public building that 'articulates its functions’ with ‘strength, dignity, grace, and even glamor.’ ” Breyer, who as a judge of the U.S. Court of Appeals for the 1st Circuit helped design a new courthouse, conceded city hall had also been declared “the world’s ugliest building.”

The outcome of the case was unanimous, and Breyer’s opinion was joined by Chief Justice John G. Roberts Jr. and Justices Sonia Sotomayor, Elena Kagan, Brett M. Kavanaugh and Amy Coney Barrett.

The court’s three most conservative members agreed Boston should lose, but disagreed with Breyer’s reasoning.

Justice Samuel A. Alito Jr. said there was no need to invoke a complicated test to decide whether something is private speech or government speech — the test is “whether the government is speaking instead of regulating private expression.”

Joined by Justices Clarence Thomas and Neil M. Gorsuch, Alito wrote that “Government speech occurs if — but only if — a government purposefully expresses a message of its own through persons authorized to speak on its behalf, and in doing so, does not rely on a means that abridges private speech.”

Thomas joined the Alito dissent even though it criticized a previous case written by Breyer in which Thomas was in the majority. It said Texas was free to keep the Confederate insignia off license plates — although hundreds of other messages were allowed — because that could be seen as government endorsement rather than an individual’s private speech.

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Gorsuch, joined by Thomas, also took a swing at the court’s much criticized, but never overturned “Lemon test,” which came from a 1971 opinion in Lemon v. Kurtzman, that attempted to advise governments on how to avoid actions that would be seen as endorsement of religion.

“The only sure thing Lemon yielded was new business for lawyers and judges,” Gorsuch wrote.

While religious groups congratulated the court on the ruling, opponents worried that governments might take the wrong message from it.

“This ruling could undermine church-state separation if it is abused in ways that end up favoring the dominant religious majority,” Rachel Laser, president of Americans United for Separation of Church and State, said in a statement. “But governments might avoid that by closing the forum at any time, as the court noted. Additionally, the flags flying above city hall would have been government speech if Boston had stated so in a policy or exercised more discretion in deciding which flags to display. Other governments might take that path.”

The case is Shurtleff v. Boston.