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Boston appears headed for Supreme Court loss over refusal to fly a Christian flag

Conservative justices said the city was wrong to conclude that allowing the flag would be an unconstitutional government endorsement of religion.

WASHINGTON — The Supreme Court on Tuesday seemed prepared to rule that the city of Boston was wrong when it refused to let an organization fly a Christian flag in front of city hall.

The justices heard about 90 minutes of oral argument in a case that invited the court to decide whether the flagpole conveyed a government message or whether it was a forum open to all comers.

Boston said the flagpole was an expression of the city's views, and therefore flying the Christian flag would amount to an unconstitutional government endorsement of religion. "Governments speak from government-owned flagpoles," said Douglas Hallward-Driemeier, the city's lawyer.

But Boston's legal position was opposed by the Biden administration, which said the city could not censor a religious message in what amounts to a kind of public forum.

Three flagpoles stand in front of city hall, two for the flags of the United States and the state of Massachusetts. On the third, Boston's city flag is normally raised, but the city makes the spot available for private organizations that conduct commemorations in the plaza in front of the building to celebrate the community's diversity.

The case involved a request from Harold Shurtleff, founder of Camp Constitution, which says part of its mission "is to enhance understanding of the country's Judeo-Christian heritage." When he sought permission to fly what he described as "a Christian flag" — a cross in a blue square on a white field — the city turned him down. So he sued.

His lawyer, Mathew Staver, told the court that the city's message was, "All applicants are welcome, except religious viewpoints." He said that amounted to censorship, because the flagpole was a kind of public forum.

IMAGE: Hal Shurtleff Pastor Earl Wallace
Hal Shurtleff, a co-founder of Camp Constitution, and Pastor Earl Wallace of Liberty Christian Fellowship of New York hold what they call "the Christian flag" outside the federal courthouse in South Boston in 2019.Liberty Counsel

Some of the justices questioned that position. "Go look at the city plaza, flags right in front of city hall. Of course you think it has something to do with the city," said Stephen Breyer, who was a federal appeals court judge in Boston.

"Why would you think this is anything other than the government flying the flag?" asked Elena Kagan, the former dean of Harvard Law School, located across the Charles River in Cambridge.

She said a city must be able to set limits on what it displays on its flagpoles.

"Does the city have to say yes to a Swastika?" she asked.

Staver said the city can set limits but cannot discriminate against viewpoints in what he said was a public forum. "If the city allows a Black Lives Matter flag, then it will probably have to allow a Proud Boys flag. That's just what the First Amendment requires."

Several of the court's conservatives said Boston allowed virtually any group celebrating diversity to put up the flag of a nation of origin.

"When you say anybody can speak by putting up a flag, are you not creating a forum for private speech?" asked Samuel Alito.

Conservative justices also said Boston was wrong to conclude that allowing the Christian flag to fly would be an unconstitutional government endorsement of religion.

"That's a mistaken view of the Establishment Clause," said Brett Kavanaugh, referring to part of the First Amendment. "Equal treatment of religious and non-religious groups isn't a violation."

Staver said the flagpole could not be considered an outlet for government messages because the city exercised virtually no control over who can use it. In the 12 years before Camp Constitution's request, he said, the city approved 284 flag raising events with no record of any denials — until the one involving the Christian flag.

The Supreme Court's rulings on government speech and endorsement of religion have been something of a tangle. It has said it's unconstitutional to post the Ten Commandments in a local courthouse but not to put up a monument to the Biblical principles in a park that has other monuments.

It has also said that the slogans on license plates are government speech and that states can therefore restrict the messages they bear. But it has ruled that the federal government's grant of trademark protection is not government speech, so federal regulators can't refuse to grant trademarks to offensive brand names.

The court will issue its decision in the Boston case by late June.