The US supreme court on Tuesday considered whether the city of Boston violated the free speech of a Christian group which sought to fly a flag in front of city hall.
The justices seemed to have little doubt that Boston was wrong to refuse to fly the banner, which was described as a Christian flag.
Three flagpoles stand outside Boston city hall. The US flag and the Massachusetts state flag are permanent fixtures. The third pole is usually reserved for the Boston flag but the city has allowed groups to use it while holding events in front of the building.
Flags that have been flown include the LGBTQ+ pride flag and those of different nations.
In 2017, Harold Shurtleff, the founder of Camp Constitution, a volunteer group that aims “to enhance the understanding of the country’s Judeo-Christian heritage”, applied to have a white flag with a red cross on a blue square flown during an event featuring “short speeches by some local clergy focusing on Boston’s history”, court documents say.
The city denied the application and shortly afterwards published rules saying it would deny flags that support “discrimination, prejudice or religious movements”.
Shurtleff sued, saying the city violated his free speech by denying him and Camp Constitution access to the flagpole, which he argues is a public forum.
The city argued that the flagpole is government speech and that to fly religious flags from it would constitute an unconstitutional endorsement of religion.
In court documents, lawyers for Shurtleff argue that the city long exercised little control over who could use the flagpole, sometimes approving applications without looking at the flags that would be raised.
Before Shurtleff’s application, over a decade, the city approved 284 flag-raising events without denying any.
Once the supreme court announced it would be taking up Shurtleff’s case, Boston said it would no longer accept applications to fly flags in front of city hall.
Two lower courts decided in favor of the city but those decisions could be overturned by a supreme court controlled 6-3 by conservative justices.
Furthermore, the American Civil Liberties Union (ACLU) and the Biden justice department have filed briefs siding with Camp Constitution, saying the flagpole has been used essentially as a public forum.
“[The city] has flown political flags, national flags and the flags of private civic organizations,” wrote David Cole, national legal director of the ACLU, in an op-ed for the Washington Post.
“Free speech principles prohibit the government from discriminating against speakers because of their messages, including religious messages.”
On Tuesday, arguments at the high court appeared to unite justices on the left and right in favor of Shurtleff.
Samuel Alito, a conservative, noted that Chinese and Cuban flags had flown. Douglas Hallward-Driemeier, representing Boston, said those were part of a policy that recognizes the heritage of Boston residents, not an endorsement of those regimes.
Elena Kagan, a liberal, was among several justices who suggested the decision to refuse Shurtleff’s request was a simple mistake.
“Why is it that people have not been able to correct this mistake?” Kagan asked.
The case has a “strange bedfellows” aspect to it, in that Shurtleff, a former organizer with the far-right John Birch Society, uses his Camp Constitution website to question the 6 January 2021 insurrection at the US Capitol, the outcome of the 2020 election that put President Joe Biden in office, the efficacy of Covid-19 vaccines and even who was behind the 9/11 attacks.
None of that came up during arguments on Tuesday. A decision is expected by late spring.
