The religious group Camp Constitution argued that the Christian Flag was the only one from a civic group that had ever been denied in Boston, and that the city had flown dozens of other unique flags since 2005. File Photo by Leigh Vogel/UPI | License Photo
May 2 (UPI) -- The U.S. Supreme Court on Monday unanimously ruled against the city of Boston and said officials there violated the First Amendment when they denied a group an opportunity to fly the Christian Flag outside City Hall four years ago.
Camp Constitution, a New Hampshire-based group focused on promoting "Judeo-Christian moral heritage," had asked to fly the flag from one of three 83-feet-tall city flag poles outside Boston City Hall to celebrate Constitution Day in 2017.
The Christian Flag, which features a white field and a red Latin cross inside a blue canton, was created in 1907 and has been used by many churches from varying denominations in the United States since its adoption by the Federal Council of Churches in 1942.
The commissioner of Boston's property management department told Hal Shurtleff, the group's founder, that Camp Constitution could not fly the flag because he worried it would violate the U.S. Constitution's establishment clause and that there was no instance of the city ever raising such a flag.
Camp Constitution sued and argued that the Christian Flag was the only one from a civic group that had ever been denied, and that Boston had flown around 50 unique flags since 2005 during similar public events.
Two lower courts had sided with the city before the Supreme Court said it would hear the case last September. The arguments were presented before the high court in January.
Justice Stephen Breyer wrote that the court concluded that the flagpole served as a public forum and that Boston had not used it as a form of governmental speech.
The Christian Flag features a white field and a red Latin cross inside a blue canton and has been used by many churches in the United States since its adoption in 1942. Photo courtesy U.S. Supreme Court/UPI
"At that time, Boston admits, it had no written policy limiting use of the flagpole based on the content of a flag," Breyer wrote in the court's 9-0 opinion.
"The parties dispute whether, on these facts, Boston reserved the pole to fly flags that communicate governmental messages, or instead opened the flagpole for citizens to express their own views."
Breyer noted that, from two of the three flag poles, Boston flies the flags for the United States and Massachusetts and typically flies the city's flag from the third. But by allowing some groups to occasionally fly their flags from the third pole, the court said Boston created a public forum and flew other banners, such as the Pride Flag for other civic groups.
Breyer said that the court observed evidence in the case that favored Boston -- noting that a flag's content, as well as its presence and position, "have long conveyed important messages about government."
"The flying of a flag other than a government's own can also convey a governmental message. A foreign flag outside Blair House, across the street from the White House, signals that a foreign leader is visiting," the opinion states.
"Keeping with this tradition, flags on Boston's City Hall Plaza usually convey the city's messages."
However, Breyer said that the court had to determine whether, when the city flies flags from other civic groups, if those too constituted official government speech.
"[Camp Constitution says] say that a pedestrian glimpsing a flag other than Boston's on the third flagpole might simply look down onto the plaza, see a group of private citizens conducting a ceremony without the city's presence, and associate the new flag with them, not Boston," Breyer wrote.
"Thus, even if the public would ordinarily associate a flag's message with Boston, that is not necessarily true for the flags at issue here."
Boston argued that at least most of the other flags that were flown represented the city's views, an argument the court dismissed.
"We do not settle this dispute by counting noses -- or, rather, counting flags," Breyer, who is in his final term as a Supreme Court justice before he retires, said.
"That is so for several reasons. For one thing, Boston told the public that it sought 'to accommodate all applicants' who wished to hold events at Boston's "public forums," including on City Hall Plaza."
Breyer wrote that there was nothing preventing Boston from "changing its policies going forward" -- and noted, for example, that the city of San Jose, Calif., says in writing that its flag poles do not serve as a forum for free expression by the public.
Justice Brett Kavanaugh in a separate concurring opinion noted that the dispute "arose only because of a government official's mistaken understanding of the Establishment Clause."
"Boston granted requests to fly a variety of secular flags, but denied a request to fly a religious flag," Kavanaugh wrote.
"As this court has repeatedly made clear, however, a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like."
Justice Samuel Alito, joined in a concurring opinion by justices Clarence Thomas and Neil Gorsuch, said that he agreed with the conclusions of the court, but not how it arrived at the decision. He said that courts must more rigorously decide whether the government is actually expressing its own views or not.
"Government speech occurs if -- but only if -- a government purposefully expresses a message of its own," Alito wrote.
Gorsuch, writing in another separate opinion joined again by Thomas, said that another problem presented by the Boston case is that the flags of many nations contain religious symbols, and he noted that Boston previously flew a flag from a secular group that's "nearly identical" to the Christian Flag.
"Yet when the petitioners offered their flag, the city flinched," Gorsuch wrote.
Breyer, 83, is scheduled to retire after the court's term ends in June. He will be succeeded by Associate Justice-in-waiting Ketanji Brown Jackson, who was nominated by President Joe Biden in February and confirmed by the Senate almost a month ago. Jackson, 51, is a judge on the U.S. Court of Appeals in Washington, D.C.
U.S. Supreme Court Justice Stephen Breyer speaks as the U.S. Mint launches the Chief Justice John Marshall silver dollar on May 4, 2005, in Washington. Photo by Roger L. Wollenberg/UPI | License Photo