The U.S. Supreme Court on Tuesday considered whether the city of Boston violated the freedom of speech of a Christian group that sought to fly a flag in front of City Hall.
The judges seemed to have little doubt that Boston was wrong to refuse to fly the banner, which was described as a Christian flag.
Three flagpoles stand in front of Boston City Hall. The American flag and the Massachusetts state flag are permanent features. The third pole is usually reserved for the Boston flag, but the city has allowed groups to use it when holding events in front of the building.
The flags that have been flown include the LGBTQ+ pride flag and those of different nations.
In 2017, Harold Shurtleff, the founder of Camp Constitution, a volunteer group that aims to improve understanding of the country’s Judeo-Christian heritage, asked to fly a white flag with a red cross over a blue square during an event featuring short speeches. by some local clergy focusing on Boston history, according to court documents.
The city denied the request and soon after issued rules stating that it would refuse flags that support discrimination, prejudice or religious movements.
Shurtleff sued, claiming the city violated his freedom of speech by denying him and Camp Constitution access to the flagpole, which he says is a public forum.
The city argued that the pole is government speech and that flying religious flags on it would constitute an unconstitutional endorsement of religion.
In court documents, Shurtleff’s attorneys argue the city has long exercised little control over who could use the flagpole, sometimes approving requests without looking at the flags that would be hoisted.
Prior to Shurtleff’s request, over a decade, the city approved 284 flag-raising events without denying any.
After the Supreme Court announced it would take up the Shurtleffs case, Boston said it would no longer accept requests to fly flags in front of City Hall.
Two lower courts have ruled in favor of the city, but those rulings could be overturned by a top court controlled 6-3 by conservative justices.
Additionally, the American Civil Liberties Union (ACLU) and Biden’s Justice Department filed briefs on the side of Camp Constitution, claiming the flagpole was used essentially as a public forum.
[The city] flew political flags, national flags and the flags of private civic organizations, wrote David Cole, national legal director for the ACLU, in a Washington Post op-ed.
Free speech principles prohibit the government from discriminating against speakers because of their messages, including religious messages.
Arguments in the High Court on Tuesday appeared to unite justices left and right in favor of Shurtleff.
Samuel Alito, a conservative, noted that the Chinese and Cuban flags flew. Douglas Hallward-Driemeier, representing Boston, said it’s part of a policy that recognizes the heritage of Boston residents, not an endorsement of those plans.
Elena Kagan, a liberal, was among several judges who suggested the decision to deny Shurtleff’s request was a simple mistake.
Why couldn’t people fix this error? Kagan asked.
The case has an odd bedfellows aspect to it, in that Shurtleff, a former organizer for the far-right John Birch Society, uses his Camp Constitution website to question the January 6, 2021 insurrection on Capitol Hill. US, the 2020 election result that put President Joe Biden in power, the effectiveness of Covid-19 vaccines, and even who was behind the 9/11 attacks.
None of this was mentioned during Tuesday’s closing arguments. A decision is expected by late spring.
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