Menu
ReligiousLiberty.TV / Founders' First Freedom®
  • Home
  • About Us
  • Contact Us
  • Articles
ReligiousLiberty.TV / Founders' First Freedom®
Boston City Hall - photo from Supreme Court Opinion

Supreme Court rules 9-0 that Boston violated 1st Amendment in refusing Christian flag at City Hall

Posted on May 2, 2022May 3, 2022 by Michael Peabody

This morning the Supreme Court unanimously ruled in Shurtleff v. Boston (Dec’d 5/2/2022) that the city of Boston violated the free speech rights of a Christian group when it refused to allow them to participate in a city flag raising program. Boston City Hall - photo from Supreme Court Opinion

The Court found that the city had created a public forum when it allowed groups to fly their flags from the third flagpole and that the city could not then discriminate against speakers based on their viewpoint. Boston’s program, in place for many years, had approved “hundreds of requests” for various flags ranging from flags honoring first responders to Pride flags. None were denied until 2017 when a group called Camp Constitution asked to fly a Christian flag.

In an opinion authored by the soon-to-retire Justice Breyer, the Supreme Court unanimously concluded that because it was clear the flag program conveyed the group’s views rather than the government’s views. Therefore, refusing to allow the group to raise a Christian flag discriminated based on religious viewpoint and violated the Free Speech Clause.

The majority opinion analyzed the flag request in light of history, the public’s perception of who is speaking, and the extent to which the government exercised control over speech. Justices Alito, Thomas, and Gorsuch in a concurrence objected to the use of the test and said that the question should have been “whether the government is speaking instead of regulating private expression.”

Picture of Bunker Hill Flag and Christian FlagJustice Gorsuch and Thomas submitted yet another concurring opinion, saying that the “real problem” is that Boston admitted that it refused to fly a Christian flag but allowed a similar-looking secular flag displaying a cross to commemorate the Battle of Bunker Hill because the Christian flag would “violate the Establishment Clause.” They expressed concern that the Lemon test was inadequate to address issues where a law serves both a secular and religious purpose, or how to define “excessive entanglement” between church and state.

Under the Lemon test, described in the 1971 case of Lemon v. Kurtzman, there are three tests for whether a law passes Establishment Clause muster. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.

Wrote Gorsuch, “Ultimately, Lemon devolved into a kind of children’s game. Start with a Christmas scene, a menorah, or a flag. Then pick your own ‘reasonable observe’ avatar. In this game, the avatar’s default settings are lazy, uniformed about history, and not particularly inclined to legal research. His default mood is irritable. To play, expose your avatar to the display and ask for his reaction. How does is feel about it? Mind you: Don’t ask him whether the proposed display actually amounts to an establishment of religion. Just ask him if he feels it ‘endorses’ religion. If so, game over.” (Italics in original.)

Gorsuch says that Boston then decided to “err on the safe side and reject” the Christian flag. “As it turns out, that route only invited years of litigation and a unanimous adverse decision because no government may discriminate against religious speech in a public forum. To avoid a spurious First Amendment problem, Boston wound up inviting a real one. Call it a Lemon trade.”

The Court overturned the District Court’s opinion, affirmed by the First Circuit, that the use of the third flagpole amounted to government speech.

 

Case:  Shurtleff v. Boston (Dec’d 5/2/2022)

1 thought on “Supreme Court rules 9-0 that Boston violated 1st Amendment in refusing Christian flag at City Hall”

  1. Janet N says:
    May 2, 2022 at 4:31 pm

    What happened to separation of church and state? How is this not an endorsement of religion?

Comments are closed.

Tweets by RelLibertyTV

Recent Posts

  • Learn About US Government and Liberty of Conscience in the Nation's Capitol: New Course for Adventist High School Students Gives College Credit

    Learn About US Government and Liberty of Conscience in the Nation's Capitol: New Course for Adventist High School Students Gives College Credit

    March 28, 2023
  • Founders’ First Freedom files Amicus Brief in US Supreme Court in Support of Workplace Religious Freedom

    Founders’ First Freedom files Amicus Brief in US Supreme Court in Support of Workplace Religious Freedom

    March 26, 2023
  • U.S. District Court Dismisses Hunter v. US Dept of Education Lawsuit

    U.S. District Court Dismisses Hunter v. US Dept of Education Lawsuit

    February 5, 2023
  • Colorado Court: Baker Must Provide "Non-Expressive" Cake to Transgender Customer

    Colorado Court: Baker Must Provide "Non-Expressive" Cake to Transgender Customer

    January 30, 2023
  • Supreme Court to Hear Christian Postal Employee Religious Discrimination Claim - Groff v. DeJoy

    Supreme Court to Hear Christian Postal Employee Religious Discrimination Claim - Groff v. DeJoy

    January 13, 2023

We are not a law firm, do not provide any legal services, legal advice or “lawyer referral services” and do not provide or participate in any legal representation.

©2023 ReligiousLiberty.TV / Founders' First Freedom® | WordPress Theme by Superb Themes
Manage Cookie Consent
To provide the best experience, we use technologies like cookies to store and/or access device information. Consenting to these technologies will allow us to process data such as browsing behavior or unique IDs on this site. Not consenting or withdrawing consent may adversely affect certain features and functions.
Functional Always active
The technical storage or access is strictly necessary for the legitimate purpose of enabling the use of a specific service explicitly requested by the subscriber or user, or for the sole purpose of carrying out the transmission of a communication over an electronic communications network.
Preferences
The technical storage or access is necessary for the legitimate purpose of storing preferences that are not requested by the subscriber or user.
Statistics
The technical storage or access that is used exclusively for statistical purposes. The technical storage or access that is used exclusively for anonymous statistical purposes. Without a subpoena, voluntary compliance on the part of your Internet Service Provider, or additional records from a third party, information stored or retrieved for this purpose alone cannot usually be used to identify you.
Marketing
The technical storage or access is required to create user profiles to send advertising, or to track the user on a website or across several websites for similar marketing purposes.
Manage options Manage services Manage vendors Read more about these purposes
View preferences
{title} {title} {title}