The past week has been a historic time for the Supreme Court. Although the leaked opinion in Dobbs v. Jackson has taken front and center in our national dialogue, another case was handed down this week that is a huge win for free speech. This case is of course Shurtleff v. City of Boston, which centers around the cities refusal to fly a Christian flag on their front steps.
Boston’s City Hall, which was built in 1968, has long been a place where private groups can raise a flag to support their cause. Three flagpoles stand before the Brutalist style city hall, one for the flag of the United States, on for the Commonwealth of Massachusetts, and one final flagpole for private groups. Over the long history of the city hall, not once has the city of Boston refused to fly a flag, until members of the group known as Camp Constitution requested to promote their heritage through a Christian symbol. At this request, the city refused on the basis that it would violate the Establishment Clause, which bans state control of churches. Camp Constitution sued, and the decision found its way to the Supreme Court.
Justice Stephen G. Breyer authored the majority opinion in favor of Camp Constitution. The issue at hand was whether or not the views expressed on the exterior flags counted as government-endorsed speech. If they expressed the views of the governing system, Boston would have the authority to decide which flags to fly. Justice Breyer posited that while the history surrounding flag etiquette supported Boston’s position, “the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech.” He concluded that the because of this, the city of Boston’s refusal to fly a Christian flag violated the First Amendment.
Chief Justice John G. Roberts Jr., and Justices Elena Kagen, Brett M. Kavanagh, Sonya Sotomayor, and Amy Coney Barrett joined the majority opinion. While Justices Samuel A. Alito, Clarence Thomas, and Neil M. Gorsuch concurred, they warned of the dangers of a government claiming that certain private speech is in fact governmental. They argued that if the government so deemed, it could grant certain groups higher privileges over others on the basis that their speech aligned with the government’s ideals. A Pride flag might be flown over the city hall because the government classifies it as one of their own viewpoints, but a Christian flag could still be rejected.
Justice Brett M. Kavanagh, in a concurring opinion, submitted that a government does not break the Establishment Clause when it allows religion to be represented along with secular groups. He even went further to say that “a government may not treat religious persons, religious organizations, or religious speech as second-class.”
The unanimous decision on Shurtleff v. City of Boston is a great victory for free speech in the public sphere. Justice Breyer’s opinion shows reminds us that our country is a special place where an individual’s religious and political viewpoints can be expressed freely. Not only will this victory allow Camp Constitution to proudly fly their flag, but it will also set a precedent for free speech and free religious expression in the future.
