On Tuesday, the Supreme Court heard arguments concerning the City of Boston’s refusal to allow a private organization to fly a Christian flag on a flagpole next to City Hall that was routinely made available to any private organization that applied to do so. The case is Shurtleff v. City of Boston.
The case presented a stunning example of a city censoring only Christian speech while allowing speech by a host of other private organizations. The City of Boston flies the American flag and the Commonwealth of Massachusetts flag every day, but there are two other flag poles that sometimes hold the city’s flag, and other times hold the flags of private organizations that apply to have a flag-raising ceremony and temporarily fly their flag.
For thirteen years, the City of Boston had approved 284 applications from all sorts of organizations, including a left-wing group that supported the Chinese Communist Party and wanted to fly the Chinese flag, immigrant groups that wanted to fly their home country’s flags, a gay rights group flying a gay pride flag, and the Metro Credit Union flying its flag. No flag application had ever been denied—until City bureaucrats saw the word “Christian” describing the flag that the Camp Constitution organization wanted to fly on Constitution Day. It was a white flag with a blue square in the corner and a red cross within the blue square.
That was too much for the City. For the first time ever, they said no. They would not fly a Christian flag. They claimed that passers-by might view the flag as conveying the City’s own message—never mind that such an objection had never come up in the past. It also contradicted their claim that they would have allowed the Camp Constitution group to fly the same flag if the group simply didn’t refer to it as a “Christian” flag.
The legal problem for the City is that they had created a “public forum” by routinely allowing any organization that applied to fly its flag to do so. It’s the same as a city allowing private organizations to use a park amphitheater, or to use rooms in a community center. Once the City creates a public forum, it cannot discriminate by denying access to the forum to organizations with particular viewpoints, including religious viewpoints. To do so would violate the freedom of speech protected by the First Amendment.
Nevertheless, the City prevailed in federal district court, as well as in the U.S. Court of Appeals for the First Circuit, which is dominated by Democrat appointees. Fortunately, the Camp Constitution plaintiffs stood their ground and petitioned to the Supreme Court, which accepted the case in September.
Although it is often difficult to draw firm conclusions from the questions and comments made by the Justices during oral argument, in this case the Justices’ inclinations were evident. Most were clearly critical of the City’s reasoning.
The conservative Justices seemed likely to rule against the City. Justice Gorsuch pointed out that the City was “treat[ing] religious viewpoints the equivalent of offensive or inappropriate ones.” Justice Thomas reacted to the City of Boston’s claim that it was celebrating diversity by allowing other nations’ flags to fly by pointing out, “it would seem to me that Christians in Boston would be a part of that diversity calculus.”
Even Justice Kagan suggested that “this was a mistake” by the Boston bureaucrat who denied the application. She wondered why the City had not settled the case with the plaintiffs.
These and other statements suggest that the Court isn’t buying Boston’s arguments. Hopefully that proves to be true when the Supreme Court’s decision is issued. For too long, too many government bureaucrats have been hostile to Christianity and its symbols. A victory in this case for the plaintiffs would do much to reverse that trend.
Kris W. Kobach served as the Secretary of State of Kansas during 2011-2019. Prior to that, he was a professor of constitutional law at the University of Missouri—Kansas City School of Law during 1996-2011. An expert in immigration law and policy, he was also an informal adviser to President Trump. He is currently General Counsel of the Alliance for Free Citizens. His website is www.kriskobach.com.
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