Shurtleff, who as head of Camp Constitution had argued in court documents that his group was denied a permit in 2017 to fly a Christian flag on city hall flagpoles in connection with Constitution Day, which is celebrated annually on September when the US Constitution was signed in Philadelphia in 1787. Shurtleff had lost in challenges in the US District Court and the First Circuit Court of Appeals.
The Supreme Court sided solidly with him on Monday. Joining Breyer in his written ruling were Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Amy Coney Barrett. Justices Samuel Alito, Clarence Thomas and Neil Gorsuch issued their own decision. Gorsuch issued a separate concurring opinion joined by Thomas. Kavanaugh also wrote a concurring opinion.
According to Breyer, Shurtleff’s application was the only time the city had refused to fly a flag, having approved 284 applications from a variety of businesses and organizations between 2005 and 2017, the court said.
The court said that if the city had issued a flag policy that expressly endorsed the message printed on the flag, then it would have qualified as government speech, and the city could reject, or accept, applications for flags from those organizations that did. city explicitly supported.
“The first and basic question we must answer is whether Boston’s flag-raising program constitutes government speech. If so, Boston can reject flags based on point of view. The Free Speech Clause of the First Amendment does not prevent the government from refusing to express an opinion,” Breyer wrote. “That must be true for the government to work. Boston couldn’t easily congratulate the Red Sox on a win if the city couldn’t refuse to simulcast the views of disappointed Yankees fans.”
However, the court said, the city blocked Shurtleff because of the religious message his flag carried, and for no other reason.
“While the historical practice of flying flags on government buildings favors Boston, the city’s lack of meaningful involvement in flag selection or crafting of their messages leads us to classify flag-raising as private, non-government speech. , although nothing prevents Boston from changing its policies in the future,” Breyer wrote. “The city’s refusal to allow Shurtleff and Camp Constitution to fly their flag based on their religious views violated the Free Speech Clause of the First Amendment.”
Mayor Wu, who inherited the problem when she took office, will now develop policies for flag displays at City Hall Plaza, her office said in a statement. “We are carefully reviewing the Court’s decision and its recognition of the authority of city governments to operate similar programs,” Wu’s office said in the statement. “As we consider next steps, we will ensure that future City of Boston programs are aligned with this decision.”
Shurtleff’s attorney, Mathew D. Staver, of the nonprofit Liberty Counsel, said in a phone interview Monday that the city’s position was so legally flawed that the often bitterly divided court found common ground. between its conservative and liberal wings.
“Those kinds of decisions when you have a unanimous decision are very rare,” he said. “There is a clear message from the Supreme Court that Boston’s censorship was unconstitutional… that Boston crossed the line… They had no defense.”
Staver said his client will request that the same or a similar flag with a Christian theme be raised on a city flagpole, most likely on Sept. 17 when Constitution Day is celebrated as it was in 2017. Staver said he updated the rules the city issued in 2018 cannot be enforced by the city in the wake of Monday’s ruling.
“They put in writing [in 2018] than what they had been doing for the last 12 years. And what they had been doing for the previous 12 years was struck down by the Supreme Court,” he said. “We will reach out to the city of Boston to rectify what they did in 2017.”
On behalf of the three conservative justices, Justice Alito wrote that Breyer was right when he concluded that Boston was wrong. However, Justice Alito wrote for the conservative justices that Breyer traveled the wrong legal path in reaching his conclusion.
“City policy and practice clearly indicate the intent to open a public forum to any private speaker who meets the City’s basic criteria. The point-of-view neutrality requirement applies to any such forum,” Alito wrote. “Having created such a forum, the City could not reject Shurtleff’s request because of the religious point of view he sought to express. For that reason, I agree with the final conclusion of the Court and I agree with the sentence”.
In his concurring opinion, Kavanaugh focused on what he described as a significant misunderstanding by city officials of the government’s duty to religious groups under the First Amendment and the Establishment Clause.
“A government does not violate the Establishment Clause simply because it treats religious persons, organizations, and speech the same as secular persons, organizations, and speech in public programs, benefits, facilities, and the like,” Kavanaugh wrote. “Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class.”
In his concurring decision, Judge Gorsuch wrote that the Boston lawyers relied on a 1971 Supreme Court decision, since disavowed by the court, known as the Lemon decision. “However, in this case, the city chose to follow Lemon anyway. It turned out to be a costly decision, and the Boston tribulations provide a warning to other localities and lower courts,” he wrote. “That decision led directly to this lawsuit, all the years of litigation that followed, and the loss of the city today.”
This is a developing story and will be updated.
John R. Ellement can be reached at [email protected]. Follow him on Twitter @JREbosglobe. Gal Tziperman Lotan can be reached at [email protected] or 617-929-2043.
Reference-www.bostonglobe.com