The Supreme Court of the United States ruled unanimously Monday that the city of Boston must allow a Christian group to fly its flag over City Hall, but the decision was narrow enough that other cities, indeed Boston itself, could build rules that would limit flag flying to those government-approved messages.
Just outside of Boston City Hall, once called “the ugliest building in the worldare three flagpoles. One flies the American flag, the second flies the state flag, and the third usually flies the city flag. permission to hold ceremonies in the city square Between 2005 and 2017, Boston approved the raising of 50 such flags, most of them for the national holidays of other countries.
Still, some of the flags were associated with other groups or causes: National Pride Week, emergency medical services workers and a community bank. In fact, the city had never turned down a flag-raising request until 2017 when Harold Shurtleff, director of an organization called Camp Constitution, requested to hold a flag-raising ceremony for a “Christian Flag.”
The city, fearing that a Christian flag would be seen as unconstitutional government endorsement of a particular religion, rejected the request, and Shurtleff contested the rejection, losing in two lower courts but winning in the Supreme Court on Monday.
The decision, authored by Justice Stephen Breyer, managed to navigate a clash involving both religion and politics, without wreaking havoc. As Yale law professor Akhil Amar put it in an interview with NPR, Breyer “hit the sweet spot.” He was able to “take a complicated fact pattern and find the common denominator,” namely that Boston had a “come one, come all” policy that did not apply to this Christian group.
“The key,” Breyer wrote, was the extent to which Boston really controlled the messages on the flags. And the answer, he said, was not at all. The city’s lack of meaningful participation, she said, led the court to conclude that these flag-raisings were not government speech, where the government may control their message, but private speech, in fact, religious speech, which cannot be regulated by the government.
But, in a nod to the city, Breyer noted that nothing prevents Boston from changing its policies to exclude private speech in the future. It could, like San Jose, California, explicitly say that the flags are the speech of the city and are not intended to serve as a forum for public free expression. It might even require a city council member to sponsor a flag before it can be flown.
In fact, Boston suspended its policy last fall when the Supreme Court agreed to review the current policy, so all of these options are now on the table.
Three justices, Samuel Alito, Neil Gorsuch, and Clarence Thomas, agreed with the case’s outcome but rejected Breyer’s reasoning. They wrote 30 pages of concurring opinions. Instead, the 13-page majority opinion was classic Breyer, managing to reach consensus on a measured opinion that left both sides with a clearer idea of what is and is not permissible.
It’s an approach that, as University of Georgia law professor Sonja West observes, “frustrates” some of Breyer’s conservative colleagues “who are eager to push the court harder and faster, particularly on issues affecting to religious speakers. But in a court that has been deeply divided along liberal/conservative lines of late, Breyer’s ability to bridge that gap will likely be we will miss you so much when he retires at the end of his term this summer.
Reference-www.npr.org