While the Supreme Court has grown increasingly divided, it recently made a unanimous ruling that conservative have reason to cheer.
City banned Christian flag while allowing flags for left-wing causes
Known as Shurtleff v. the City of Boston, the case revolved around a 2017 decision by Boston’s property management commissioner not to allow a Christian-theme flag to fly from City Hall during a public event.
The request had been made by Harold Shurtleff, who leads an organization known as Camp Constitution. While Camp Constitution was permitted to hold the planned activity, use of the city’s flag pole was declared off-limits.
This rule came despite the fact that between 2005 and 2017, the city had allowed private groups to fly flags in support of a number of causes, including LGBTQ rights and the Black Lives Matter movement.
However, Boston argued that allowing an explicitly Christian flag to be raised would violate the 1st Amendment’s Establishment Clause by endorsing religion.
While Shurtleff filed a lawsuit, the district court sided with the city, deciding that use the flag pole amounted to government speech; Shurtleff lost again on appeal.
Justice Breyer: Flag rule “violated the Free Speech Clause of the First Amendment”
Yet in an opinion authored by Justice Stephen Breyer, the Supreme Court disagreed, finding that the flag pole outside of Boston’s city hall amounted to a public forum.
The court determined that this public forum had been created when the city began allowing other non-state actors to make use of its flag pole.
“We conclude that Boston’s flag-raising program does not express government speech,” Breyer explained in the Court’s opinion.
“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,” he continued.
Breyer went on to add that “[w]hen the government does not speak for itself, it may not exclude private speech based on ‘religious viewpoint’; doing so ‘constitutes impermissible viewpoint discrimination.'”