The Christian right brings a Supreme Court case it actually deserves to win

The case presents a genuinely difficult free speech dispute.

The religious right has an extraordinarily high win rate before the current, Republican-dominated Supreme Court, even when it asks for accommodations that endanger human lives. So there probably isn’t much doubt how the Court will rule in Shurtleff v. Boston, a free speech case brought by a conservative Christian group.

But unlike several other cases, where this Supreme Court has scrambled longstanding legal doctrines to hand victories to religious conservatives, the plaintiffs in Shurtleff raise genuinely strong arguments under existing legal precedents. Indeed, the best arguments for these plaintiffs’ position are strong enough that President Joe Biden’s administration filed a brief urging the Court to rule in their favor.

Shurtleff involves three flagpoles that stand outside of Boston’s city hall. One of these flagpoles displays the US flag, with a flag honoring prisoners of war and missing soldiers displayed below it. The second features Massachusetts’s flag. And the third displays the city of Boston’s flag — but only most of the time.

On many occasions, the city will replace its flag with another honoring an ethnic group, a cultural celebration, a historic event or individual, or some other flag requested by private citizens. At various points, Boston has displayed the flags of many nations, including Brazil, China, Ethiopia, Italy, Mexico, and Turkey. It’s also displayed an LGBTQ Pride flag, a flag memorializing victims of murder, a flag commemorating the Battle of Bunker Hill, and a flag intended to honor Malcolm X.

But Boston will not display a Christian flag — in particular, a mostly white flag featuring a red cross on a blue background in its corner. And it won’t do so despite the fact that Camp Constitution, a group founded to promote “free enterprise” and “to enhance understanding of our Judeo-Christian moral heritage,” formally requested that the city display this flag.

The Boston city commissioner who denied this request says he did so because displaying a religious flag could be interpreted as “an endorsement by the city of a particular religion,” in violation of “separation of church and state or the [C]onstitution.” (In fairness, there are older Supreme Court cases suggesting that the government cannot take actions that could reasonably be perceived as endorsing a religious viewpoint, but those older cases are out of favor with the current Court. And they are not at issue in Shurtleff.)

Gabe Souza/Portland Press Herald via Getty Images

The legal question in Shurtleff turns on who, exactly, is expressing a pro-Christian message when a private group asks the city to display this flag on its own flagpole, and Boston agrees to do so. Is it the city who owns the pole, or the group who requested the flag?

When the government speaks in its own voice, it is allowed to say what it wants without having to worry about whether other viewpoints are excluded. As the Supreme Court put it in 2015, in a line that has tremendous resonance for the nation’s current political divide, “How could a state government effectively develop programs designed to encourage and provide vaccinations, if officials also had to voice the perspective of those who oppose this type of immunization?”

Yet, if the government creates a forum where other people are invited to express their own views, then the government is subject to strict safeguards against discrimination. As the Court put it in Pleasant Grove City v. Summum (2009), once a forum is opened to private speakers, “restrictions based on viewpoint are prohibited.”

In any event, determining who is responsible, as a legal matter, for a flag displayed on Boston’s third flagpole is not an easy question.

It’s not entirely clear, under current caselaw, who should win the Shurtleff case

The First Amendment ordinarily forbids viewpoint discrimination of any kind by the government. A public school could not, for example, provide meeting space to a student Republican organization but not a student Democratic organization, if both groups are otherwise qualified to use that space.

Notably, this bar on viewpoint discrimination is absolute. If the Supreme Court determines that it applies in the Shurtleff case, then Boston would be unable to exclude a Nazi group from flying a flag for as long as the flagpole is available to people with other viewpoints.

But the bar on viewpoint discrimination does not apply when the government expresses its own opinions in its own voice. As the Supreme Court put it in one case, the government is allowed to express the message “Fight Terrorism” without having to give equal time to al Qaeda.

In Summum, the Court rejected a demand from a religious group who claimed that, because a Utah city already displayed 15 monuments in a public park, it must also display a 16th monument proclaiming “the Seven Aphorisms of SUMMUM.” The Court reasoned that “permanent monuments displayed on public property typically represent government speech.”

Then, in Walker v. Texas Department of Motor Vehicles (2015), the Court reached a similar conclusion with respect to license plates. Texas permitted private individuals to design “specialty license plates” that had to be approved by the state. After a pro-Confederate organization designed a plate that incorporated the slaveholding confederation’s battle flag, the Court held that the state could reject this plate design.

Both cases looked to three factors to determine whether speech should be attributed to the government or to an individual — and therefore whether the government is allowed to exclude disfavored viewpoints. These include the history of the kind of forum where the speech takes place, whether the government maintained control over that forum, and whether “persons who observe” the speech would reasonably conclude that it comes from the government (These three factors can overlap somewhat, as a court may need to look at the history of a particular forum to determine whether the government maintains control over it.)

But these factors cut in different directions in the Shurtleff case. Historically, between 2005 and 2017, the city considered 284 requests to raise a flag on city hall’s third flagpole, and it approved every single one of these requests before it rejected Camp Constitution’s request to display a Christian flag. That suggests that the flagpole operated more as a public forum that was open to all comers, and less as a place where the city displays carefully curated messages.

On the other hand, the state maintains the land where the flagpole stands. It requires a city employee to be present when a new flag is raised on the flagpole. And it keeps a tight grip on the hand-crank that must be used to raise and lower flags. Boston, in other words, retains control over the flagpole.

And, while Summum and Walker asked whether someone who observes a message would reasonably understand that message to come from the government, the answer to that question is likely to depend on the observer.

Imagine someone who jogs by Boston City Hall every morning. This observer could see a Brazilian flag one day, a Pride flag the next day, and a flag honoring Malcolm X on the next. If they jogged by one day and saw a Christian flag on the same flagpole, they’d probably believe that the state flies a diversity of flags that don’t necessarily reflect the city’s official views.

Now imagine a one-time visitor to Boston who, lacking any context about why a particular flag is being displayed on a city flagpole, observes a Christian flag flying outside of city hall. That observer would reasonably conclude that the city aligns itself with Christianity — potentially to the exclusion of other faiths.

All of which is a long way of saying that, under existing law, Shurtleff is a tough case.

Why the Biden administration backed the plaintiffs in this case

Although there are plausible arguments that the three factors identified in Summum and Walker cut in either direction, the purpose of those factors is to determine who is actually expressing a particular message — the government or a private citizen. And, as the Biden administration argues in its brief, it’s tough to argue that the contested flagpole is really a place where Bostonians can learn about their government’s views.

The city, the Justice Department notes, “has not exercised any meaningful control over, or selectively chosen among, the flags flown during flag-raising events.” The city neither designs the flags that are displayed, nor asks people requesting that their flag be displayed to alter those flags. Indeed, for a dozen years, the city appears to have rubber-stamped applications to display a flag. In most cases, it approved requests “without seeing the actual flag” that would be displayed.

Boston, in other words, has hardly treated its flagpole as a place where the government displays its own carefully curated messages. It’s treated it much more like a public meeting space that anyone is allowed to use — except, apparently, for Camp Constitution.

Given this reality, and a majority of the justices’ sympathy for religious conservatives, it appears likely that Camp Constitution will prevail in Shurtleff.

That said, that doesn’t necessarily mean that a Christian flag will soon fly beside Boston City Hall. Shortly after the Supreme Court announced that it would hear the Shurtleff case, the city made an announcement of its own — “the City of Boston is no longer accepting flag-raising applications.” Boston says that it is “re-evaluating the program in light of the U.S. Supreme Court’s recent decision to consider whether the program as currently operated complies with Constitutional requirements.”

That’s an understandable decision because, as mentioned above, if the flagpole is subject to the rule against viewpoint discrimination, then this rule is absolute. Not only would Boston be forbidden from excluding religious flags, it would also be forbidden from rejecting swastikas, Confederate flags, or flags endorsing the failed January 6 effort to install former President Donald Trump as an unelected leader.

This outcome might have been avoided if Boston had maintained more control over its own flagpole — although any exclusion of a conservative Christian group could still run into problems with a conservative Supreme Court. But, under the facts of this particular case, Boston wasn’t even able to convince the Biden administration to take its side.