The Supreme Court, Religious Freedom, & Everyday Fairness

The Supreme Court’s unanimous decision in the case of Shurtleff v. Boston is in line with the Court’s other recent rulings overturning attempts by state and local government to restrict religious freedom.

In Boston, a gay pride flag was allowed to be run up the flagpole of city hall, but the flag of a Christian group displaying only a simple cross with no words or other insignia was denied. In its latest decision defending the participation of religion in society, the United States Supreme Court unanimously ruled in Shurtleff v. Boston last week that the city of Boston had an obligation to allow the Christian flag. As such, the Court continued—and not for the first time unanimously—its decade-long defense of freedom of religion.

In front of Boston’s city hall stand three very tall (83 feet) flagpoles, two of which fly the American and the Massachusetts state flags, respectively. Since at least 2005, the city has allowed private groups to have ceremonies and use the third flagpole for what it has acknowledged are “public forums.” Between 2005 and 2017, Boston allowed all comers, a total of 284, and never denied any group, including Pride Week, the opportunity to use the plaza and forum in front of city hall.

In 2017, the city received an application from Camp Constitution, a charitable and educational organization, which includes as one of its purposes “to enhance understanding of the country’s Judeo-Christian heritage,” Apparently ecumenical, the organization intended to “feature remarks by local clergy. It proposed to unfurl up the flagpole the simplest conceivable flag with a “red cross on a blue field against a white background.” Unlike every previous applicant, the organization’s application to use the public forum was denied.

Claiming that it had been singled out and discriminated against on the account of the religious content of its program and proposed speeches, Camp Constitution sued under the First Amendment’s Free Speech Clause, not under the Free Exercise Clause. The organization argued that by specifically identifying and defining the flagpole presentations as “forums” open to the “public… with hundreds of approvals and no denials,” while never controlling the speech of other presenters over 12 years, that the government of the city of Boston had used its powers to suppress speech. The organization lost in the federal district and appeals courts.

Amazingly enough, Boston replied that its “public forum—supposedly open to the speech of private organization—was really a “government forum,” and that it had complete control over any speech on government property, and “that the City may therefore choose its message, including not to speak on religious issues.” And since speech on its government property was government speech, it could not allow a religious speech there without unconstitutionally establishing religion in violation of the Establishment Clause.

In his opinion for the unanimous court, Justice Stephen Breyer distinguished two precedents and relied on a third. In Pleasant Grove v. Summum (2009), a religious organization asked a Utah city’s permission to erect a permanent monument stating the Seven Aphorisms of Summum in a city park, which already contained a monument stating the Ten Commandments. The plaintiffs argued that denying their request was viewpoint discrimination compared to that other monument. In unanimously denying their case, the Supreme Court ruled that by tightly controlling the erection of monuments in the park, the city was exercising “government speech,” not speech in a forum open to the public and, therefore, had not denied the private First Amendment speech of the religious organization. Justice Samuel Alito wrote the majority unanimous opinion. Justice Breyer wrote a concurring opinion.

Likewise in Walker v. Tex. Confederate Veterans (2015), the Court by a 5-4 vote upheld the decision of the Texas Department of Motor Vehicles rejecting the application of the Sons of Confederate Veterans for a special license plate displaying the Confederate battle flag. Writing for the closely-divided Court, Justice Breyer said that license plates and their messages were government speech for a governmental purpose and that Texas could closely approve or disapprove proposed new messages on them.

In contrast, in Matal v. Tam (2017), the Court unanimously upheld private speech in a constitutional construction of federal trademark statutory law. Tam was the lead singer in a music band named The Slants, and the band sought to trademark that name. Upon being rejected by the U.S. Patent and Trademark Office as offensive to and disparaging of Asians, as prohibited by an actual Disparagement Clause in federal trademark law, the band sued. Writing for the Court, Justice Alito said that the Office merely registers trademarks and the details and legal requirements of setting up trademarks; it does not have the authority to make judgments about the content of each trademark’s words and its offensiveness. To do so would be “viewpoint discrimination.” The speech in a trademark is not a statement by the government; it is private speech. Federal trademarks register and afford ownership and protections of speech chosen by private persons. If the federal government could control the words of trademarks, Justice Alito warned ominously, then it could control the multitude of words in every copyright. Justice Breyer, of course, joined the unanimous opinion.

In his short and simple opinion for the Court in the present Shurtleff case, Justice Breyer emphasized the undisputed factual origin and basis of the case and the city of Boston’s unbroken and regular policy about its flagpoles. Avoiding sweeping constitutional pronouncements, he said that the Court’s decision had conducted a “holistic” rather than “mechanical” analysis “driven by the case’s context rather than the rote application of rigid factors” about the balance and difference between private and government speech. The “most salient feature” of the case was “the extent to which Boston actively controlled these flag raisings and shaped the messages the flags sent. The answer, it seems, is not at all.” Thus, here we have nine justices of the United States Supreme Court basing their decision on and recognizing everyday fairness, and the improper singling out and targeting of a religious group. Boston followed a “come-one-come-all” policy, Justice Breyer said, to all others. Justice Brett Kavanaugh wrote a concurring opinion, and Justices Alito and Neil Gorsuch, each joined by Justice Clarence Thomas and with Gorsuch joining Alito as well, concurred in the judgment but elaborated on the constitutional principles.

As for precedents involving the attempted suppression of specifically religious speech, Justice Breyer cited and relied on Good News Club v. Milford (2001), a 6-3 decision in which Justice Thomas wrote for the Court and in which Justice Breyer concurred—a case in which the Court ruled that a public school had unconstitutionally discriminated against a nondenominational Christian organization by denying it the opportunity to meet after-school in the school building when the school district allowed other groups to do so. It was a violation of the First Amendment based on “religious viewpoint.”

For the same principle, Justice Breyer also cited the 5-4 decision of the Court in Rosenberger v. University of Virginia (1995), a case in which the Court held that the University of Virginia must subsidize a student religious publication in the same manner that it subsidized other student publications. Justice Anthony Kennedy, writing for the majority, stated that the Establishment Clause required the University to be neutral toward religion, and the Free Speech Clause required the University to not have any “bias or hostility to religion.” Justice Breyer dissented.

But the extent to which a unanimous Supreme Court decision involving religion has now been based on the obvious-to-everyone fairness of the “case’s context” emphasizes and underlines a major American city’s unfairness and rhetorical mendacity in defending its unfairness. It was “come-one-come-all” until religion asked for equal treatment. Overall, the case fit completely within the Court’s precedents about “government” forums versus forums open to the public for private speech.

Moreover, the unanimous decision in Shurtleff against the city of Boston is of the same kind as the Court’s other recent rulings overturning attempts by state and local government to restrict religious freedom. Most famously, in its 2018 Masterpiece Cake decision, the Court ruled 7-2 that that the state of Colorado could not force a Christian baker to bake and decorate a wedding cake for a gay marriage. Likewise, in its unanimous decision in the 2020 Fulton case, the Court prevented the city of Philadelphia from denying Catholic Social Services the opportunity to participate in the city’s public foster-care program because it refused to place children in the homes of same-sex couples. But even more important than these three cases is the unanimous decision of the Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC(2012), a suit against the federal government in which the issue was the definition of a minister. Note that here a church was a plaintiff against government.

Thus, today, religious freedom is being defended by both so-called conservative and so-called liberal justices.  As such, there may be no other issue like it. It would be good if the executive branches of government at all levels would be admonished.

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The featured image is courtesy of Pixabay.