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Supreme Court to debate whether Boston may stop a Christian flag from flying over City Hall

USA TODAY logo USA TODAY 1/18/2022 John Fritze, USA TODAY
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WASHINGTON – For years, the city of Boston rotated dozens of flags on a pole outside City Hall to celebrate veterans, paramedics, sports teams and LGBTQ pride as part of what it describes as an effort to promote diversity and civic engagement.

But when a group applied in 2017 to hoist a "Christian flag" up the 83-foot pole, city officials said it wouldn't fly. The blue and white flag, with a red Latin cross in one corner, would violate the long-held principle of separation of church and state, they said. 

Now, the Supreme Court will hear arguments Tuesday in that dispute, which turns on a fundamental First Amendment question: Who is conveying a message when a third-party group's flag flies on a government flagpole? The group or the government? 

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Even some advocates sympathetic to Boston's position acknowledge the city will likely be on defense, despite winning last year at the U.S. Court of Appeals for the 1st Circuit. The high court's conservative majority often looks askance at government regulation of religion and some of the justices have fretted about what they see as "disfavored" religious rights.

Camp Constitution, the group challenging the city, has picked up some notable allies, including the Biden administration, which says the federal government confronts similar issues when it permits protests on the National Mall or allows people to submit designs for special U.S. Postal Service stamps to celebrate community events.

"What's unusual about this case that's hard for Boston to overcome is that they called it a public forum and they said it was open for all applicants and then, after 12 years of approving these applications with no denials, they censor one," said Mathew Staver with Liberty Counsel, a Christian legal group representing Camp Constitution. 

Staver and his allies say Boston's flagpole is a public forum, a key concept in First Amendment law used by courts to help analyze when the government may regulate speech on public property. The government can't restrict speech based on the speaker's viewpoint in a public forum. What that means in practice is that if the city allows one group to speak in that space, say an LGBTQ rights group, it can't block a religious group that opposes those rights from speaking.

Boston counters that the flag flapping above City Hall is, in fact, a form of government speech – not a public forum for First Amendment purposes – and that city residents perceive the flag as having the city's stamp of approval. Any other approach, the city argues, leads to absurd results: Boston might be forced to fly a New York Yankees flag a week after raising one for the Red Sox.

Or, more seriously, it might be required to fly a flag from a neo-Nazi group. 

Instead, Boston officials say they choose which messages to endorse and that virtually all of the third-party flags they pick commemorate a day of observance, such as Juneteenth, a day that celebrates the Emancipation Proclamation, or St. Patrick's Day. Taken together, they say, it all means the messages the flags convey are the city's. 

"It's well settled that when governments speak they can say what they want," said Douglas Hallward-Driemeier, a veteran Supreme Court lawyer who will argue the case Tuesday on behalf of Boston. "Certainly, the people of Boston who walk past City Hall Plaza every day would understand that this is where the city is speaking."

If Boston wins on that point, the issue of religion – religious freedom and disfavoring religious organizations – may not enter the picture. And that would likely increase the city's odds of success. 

In all sorts of contexts, including the COVID-19 pandemic, the high court has looked favorably on religious freedom claims, from churches and synagogues successfully challenging coronavirus restrictions to religious entities that beat back requirements that they provide health insurance coverage for contraceptives.  

In 2019, the court ruled that a massive Latin cross on government property outside of Washington, D.C., did not have to be moved in the name of church-state separation. In 2014 the court upheld a centuries-old tradition of offering prayers to open government meetings, even if those prayers are overwhelmingly Christian.

On the other hand, a 5-4 court in 2015 held that specialty license plates promoting everything from "Choose Life" to "Conserve Water" could prohibit images like the Confederate flag because license plates are government speech. The decision drew a sharp dissent from Associate Justice Samuel Alito, joined by Chief Justice John Roberts and two others who have since left the court. 

"Messages that are proposed by private parties and placed on Texas specialty plates are private speech," Alito wrote. 

Boston's guest flag program appears to be relatively rare. Perhaps anticipating lawsuits, more than 7 in 10 cities do not fly third-party flags at all, according to a survey by the International Municipal Lawyers Association.

Even if Boston loses, it's unlikely Camp Constitution's flag will ever fly at City Hall. What's more likely is that the city, and others with programs like it, will just stop raising anyone's flag, experts said. Boston has already discontinued its guest flag program until the Supreme Court hands down a decision, likely later this year.

Lisa Soronen, executive director of the State & Local Legal Center, said that outcome would be a missed opportunity. 

"It's a small thing but there is some value in flying them," Soronen said. "We have all these conversations about democracy in decline and I think there's something lost by the possibility of that for a city building up its worldview, its perspective, its friends."

This article originally appeared on USA TODAY: Supreme Court to debate whether Boston may stop a Christian flag from flying over City Hall

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