May 2, 2022

-The Hill


The Supreme Court on Monday unanimously ruled that Boston violated the Constitution by refusing to permit a Christian group to fly its flag outside City Hall while allowing other organizations to hoist their banners.

The justices said the city had run afoul of free speech protections by declining a request from Camp Constitution, a religious group, to fly a Christian flag bearing the Latin cross to commemorate Constitution Day and honor the Christian community’s civic contribution.

A pivotal issue in the case was whether Boston, by making a flagpole on City Hall Plaza available for use by certain outside groups, had created a forum for private speech, or whether the flying of third-party flags amounted to a government-backed message.

In a 9-0 decision penned by Justice Stephen Breyer, the court ruled that because Boston’s flag-flying tradition did not amount to government speech, the city’s refusal to fly Camp Constitution’s flag based on its religious viewpoint violated the group’s freedom of speech.

“When a government does not speak for itself, it may not exclude speech based on ‘religious viewpoint,’” Breyer wrote, citing Supreme Court precedent. “Doing so ‘constitutes impermissible viewpoint discrimination.’”

Although the court ultimately ruled against Boston, it showed some sympathy for the city’s argument that an ordinary observer might view the third-party flags as government speech. The flagpole at issue, when not being used in third-party ceremonies, typically flies the Boston city flag and stands adjacent to an American flag and Massachusetts commonwealth flag that are on permanent display outside City Hall.

But Breyer wrote that Boston had “allowed its flag to be lowered and other flags to be raised with some regularity.” He noted that before its dispute with Camp Constitution, Boston had approved roughly 50 flags from 2005 to 2017 to be raised in more than 280 brief ceremonies — where participants generally gathered around the flagpole.

“Petitioners [Camp Constitution] say that a pedestrian glimpsing a flag other than Boston’s on the third flagpole might simply look down onto the plaza, see a group of private citizens conducting a ceremony without the city’s presence, and associate the new flag with them, not Boston,” he wrote. “Thus, even if the public would ordinarily associate a flag’s message with Boston, that is not necessarily true for the flags at issue here.”

The opinion reversed lower court decisions that sided with Boston.

The Monday ruling also favored the position that had been advanced by the Biden administration, which sided with Camp Constitution. The administration argued that Boston had not exercised the degree of control over its flag policy that is typically associated with government speech, comparing the flag-raising program to an “open mic night.”

Justice Brett Kavanaugh wrote one of three separate opinions concurring in the court’s judgment. He wrote that the dispute boiled down to a Boston city official’s misunderstanding of the First Amendment’s Establishment Clause, which prohibits the government from favoring one religion over another — or favoring religion over secular causes.

“As this Court has repeatedly made clear, however, a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like,” Kavanaugh wrote. “On the contrary, a government violates the Constitution when (as here) it excludes religious persons, organizations, or speech because of religion from public programs, benefits, facilities, and the like.”