supreme court
Religious Speech On Government Property Can Be Permittable, Says SCOTUS

May 3, 2022

By Terri Jo Neff |

Cities and other government entities which allow their flagpoles to be used by community groups and private organizations cannot prohibit the hoisting of religious-themed flags based on the religious messaging, a unanimous U.S. Supreme Court ruled Monday.

Justice Stephen Breyer authored the main opinion in Shurtleff v City of Boston, holding that the city would not have engaged in the endorsement or support of religion by simply allowing a religious flag to be flown from one of the three flagpoles often used for special events at Boston City Hall.

The case stems from a resident’s request in 2017 to fly a “Christian flag” during a public event at city hall to celebrate “the civic and social contributions of the Christian community” in Boston. City officials denied the request, citing concerns that allowing the flag would be a violation of the Establishment Clause of the First Amendment, which prohibits the enactment of any law “respecting an establishment of religion.”

However, none of the prior 50 or so flagpole requests being denied. And that, according to Breyer’s opinion, put the City of Boston on the wrong side of another provision of the First Amendment – the Free Speech Clause which states governments shall make no law respecting the establishment or free exercise of religion, or abridging the freedom of speech.

“The boundary between government speech and private expression can blur when, as here, a government invites the people to participate in a program,” Breyer wrote, adding that on balance, the Court concluded “Boston did not make the raising and flying of private groups’ flags a form of govern­ment speech.”

This meant, Breyer noted, that Boston’s refusal to allow a Christian flag to fly during a special public event abridged the requestors’ Constitutional right of freedom of speech.

According to Breyer’s opinion, there could be times when flying a non-governmental flag could convey a govern­mental message. Which is why it is necessary to undertake a “holistic inquiry” of the circumstances involved in, he wrote. Such an inquiry in this case, Breyer noted, shows city officials policy allowing third-party flag raisings makes the message private, non-government speech.

And when the government does not speak for itself, it may not exclude private speech based on the “religious viewpoint” of that speech.

Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito agreed Boston officials violated the First Amendment’s freedom of speech by rejecting the Christian flag, but came to that decision using different legal reasoning than Breyer.

Alito, in a concurring judgment, felt Breyer’s review process was overly complicated. The only question to be asked, Alito wrote, is whether the flag represented the city’s speech.

“The ultimate question is whether the government is actually expressing its own views or the real speaker is a private party and the government is sur­reptitiously engaged in the ‘regulation of private speech,’” Alito wrote.

And in his own concurring judgment, Gorsuch placed blame on a 1971 SCOTUS decision Lemon v. Kurtzman for Boston’s uncertainty with the competing interests of the Free Speech Clause and the Establishment Clause. According to Gorsuch, Lemon “produced only chaos” for years before eventually being abandoned by the Court.

“Our Consti­tution was not designed to erase religion from American life; it was designed to ensure ‘respect and tolerance,’” Gorsuch wrote, quoting in part a 2019 SCOTUS opinion. “To justify a policy that discriminated against religion, Boston sought to drag Lemon once more from its grave. It was a strategy as risky as it was unsound.”

Justice Brett Kavanaugh authored a short concurring opinion, pointing out the Boston dispute arose because city officials did not understand the Establishment Clause.” He noted that SCOTUS “has repeatedly made clear” that a government does not violate the Es­tablishment Clause merely by treating religious per­sons, organizations, and speech equally with secular per­sons, organizations, and speech.

“Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class,” Kavanaugh wrote.

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