But Breyer wrote that the city’s program essentially welcomed all but one comer, and that it violated the First Amendment’s free speech protections.
“All in all, while the historic practice of the flag flying on government buildings favors Boston, the city’s lack of meaningful involvement in selecting the flags or crafting their messages leads us to categorize flag raisings as private, not governmental, speeches – although nothing prevents Boston from changing its policies in the future,” Breyer wrote.
The case involves three flagpoles in a plaza outside Boston City Hall. One sports the American flag, the other the Massachusetts flag, and most of the time the third sports the city flag.
Sometimes the city replaces its own flag with another, after a group has requested to raise its own banner for a brief period, usually in connection with an event.
From 2005 to 2017, the city approved 284 consecutive applications. But then Harold Shurtleff, who leads a conservative group called Camp Constitution, asked to raise a white flag with a red cross over a blue square in the top left corner, which he noted as a “Christian flag”.
It was turned down, on the grounds that it appeared the city endorsed one religion over another.
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The lower courts said the city had that prerogative. But Shurtleff’s case has united conservative religious groups with the American Civil Liberties Union and the Biden administration, all of whom have said the city is wrong.
Breyer said Boston, like other governments, has the right to control its own messages to the public, regardless of giving equal time to opposing viewpoints.
“When government wishes to express an opinion, speak on behalf of the community, formulate policies or implement programs, it naturally chooses what to say and what not to say,” Breyer wrote. “It has to be true for government to work. Boston couldn’t easily congratulate the Red Sox on a win if the city were powerless to refuse to simultaneously convey the opinions of disappointed Yankees fans.
But in this case, the city had no written policy on whether to grant a group’s request to fly its banner and gave little thought to whether granting the request was consistent with the city’s point of view. Foreign nations, LGBTQ Pride groups and a community bank all raised their flags before Camp Constitution was voted down.
Instead, the city “admits that it denied Shurtleff’s request solely because the Christian flag he asked to raise promoted a specific religion,” Breyer wrote. “Under our precedents, and given our government’s rhetoric here, this refusal was discriminatory on the basis of a religious perspective and violated the free speech clause.”
Breyer’s Boston roots were evident throughout the opinion, as well as his detailed description of the area in question.
“Built in the late 1960s, Boston City Hall is a raw concrete structure, an example of the Brutalist style,” he wrote. “Critics at the time announced that it was a public building that ‘articulates its functions’ with ‘strength, dignity, grace and even glamour’. Breyer, who as a judge of the United States Court of Appeals for the 1st Circuit helped design a new courthouse, acknowledged that City Hall had also been declared “the most ugliest in the world.
The outcome of the case was unanimous, and Breyer’s opinion was joined by Chief Justice John G. Roberts Jr. and Justices Sonia Sotomayor, Elena Kagan, Brett M. Kavanaugh, and Amy Coney Barrett.
The three most conservative members of the court agreed that Boston should lose, but disagreed with Breyer’s reasoning.
Judge Samuel A. Alito Jr. said there was no need to invoke a complicated test to decide whether something is private speech or government speech – the test is “if the government is Speaking instead of regulating private expression.
Joined by Justices Clarence Thomas and Neil M. Gorsuch, Alito wrote that “government speech occurs if – but only if – a government deliberately expresses its own message through persons authorized to speak on its behalf and, in doing so, does not rely on a medium that abbreviates private speech.
Thomas joined Alito’s dissent even though she criticized an earlier case written by Breyer in which Thomas was in the majority. He said Texas was free to keep Confederate badges on license plates – although hundreds of other messages were allowed – because it could be seen as government endorsement rather than private speech. an individual.
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Gorsuch, joined by Thomas, also took a swing at the court’s much criticized but never overruled the ‘lemon test’, which originated from a 1971 notice in Lemon vs. Kurtzmanwhich attempted to advise governments on how to avoid actions that would be seen as an endorsement of religion.
“The only sure thing Lemon has resulted in new business for lawyers and judges,” Gorsuch wrote.
While religious groups praised the court for the ruling, opponents feared governments were getting the wrong message.
“This decision could undermine the separation of church and state if misused in a way that favors the dominant religious majority,” said Rachel Laser, president of Americans United for Separation of Church and State. State, in a press release. “But governments could avoid this by shutting down the forum at any time, as the court noted. Additionally, the flags flying above City Hall would have been government talk had Boston declared it in policy or exercised more discretion in deciding which flags to display. Other governments could take this route.
The case is Shurtleff v. Boston.