Say what you want about the current Supreme Court, and many critics are never satisfied, but the Roberts Court has been sound on religious freedom. The judges provided another ringer Monday in a 9-0 decision.
Hundreds of times, the City of Boston has let private groups raise their flags for a few hours in the plaza in front of City Hall. He refused no request until he refused a requester asking to fly a Christian flag with a cross. The United States Court of Appeals for the First Circuit upheld its denial, saying Boston “engages in government speech when it raises a third-party flag” and that raising a Christian banner “could signal the adherence of the city to this religion”.
This argument did not convince any judge, for good reason. The city had authorized its mast to host the gay pride flag, the flag of Ethiopia and a flag of the Metro Credit Union. If this was all government talk, what message was Boston supposed to send?
The majority opinion in the case, Shurtleff v. Boston, speaks for six judges, three liberals and three conservatives. Judge Stephen Breyer writes for the majority that Boston had no set policy on which flags to allow, and in practice took all comers. The city employee in charge of applications said he usually never reviews flags. Indeed, the pole was a public forum, and Judge Breyer said Boston had unconstitutionally “discriminated against based on a religious perspective.”
Three judges agreed with this result but found its reasoning less than watertight. Justice Samuel Alito writes in an agreement, joined by Justices Clarence Thomas and Neil Gorsuch, that “government speech occurs if – but only if – a government deliberately expresses its own message through persons authorized to speak in her name “.
Even if Boston actively regulated which private flags could fly outside of City Hall, that wouldn’t make Boston the talk. That a “reasonable” person mistakenly attributed the flag to the city is also irrelevant.
Judge Gorsuch elaborates on this latter issue in an agreement joined by Judge Thomas. The “reasonable observer” standard, he says, is rooted in the Court’s 1971 precedent Lemon vs. Kurtzman, which created a nebulous three-part test for disputes over the Constitution’s prohibition against the establishment of a religion. The result, he adds, was that the judges began to imagine how a “lazy”, “uninformed” and “irritable” viewer might react to a Christmas flag or scene. “Just ask him,” Judge Gorsuch wrote, “if he feels he “endorses” the religion. If so, the game is over.
The Supreme Court did not apply the Lemon testing for “nearly two decades,” he says. Yet the first circuit cited the previous one. “Our Constitution was not designed to erase religion from American life; it was designed to ensure ‘respect and tolerance’,” he concludes. “This Court buried long ago Lemonand it is long overdue for local authorities and lower courts to give up.
Constantly spray a rotten Lemon is a laudable goal, and we look forward to the day when the Court finds a chance to do so.
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