Supreme Court Appears Skeptical of Boston’s Refusal to Fly Christian Flag

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The tribunal seemed poised to regularisation that the city, which has approved galore different requests to rise flags astatine its City Hall, violated a Christian group’s escaped code rights.

City Hall successful  Boston. The metropolis  refused to alert  the emblem  of Camp Constitution, a Christian organization, saying that it would magnitude  to authorities  endorsement of religion.
Credit...Ted Shaffrey/Associated Press

Adam Liptak

Jan. 18, 2022, 3:24 p.m. ET

WASHINGTON — The City of Boston, which refused to fto a backstage radical rise a Christian emblem successful beforehand of its City Hall, seemed to beryllium headed for a nonaccomplishment aft a Supreme Court argument connected Tuesday.

Justices crossed the ideological spectrum, noting that the metropolis had approved galore akin requests from organizations seeking to observe their backgrounds oregon to beforehand causes similar cheery pride, seemed acceptable to regularisation that the metropolis had violated the escaped code rights of Camp Constitution, which says it seeks “to heighten knowing of our Judeo-Christian motivation heritage.”

The group’s exertion said it sought to rise a “Christian flag” for 1 hr astatine an lawsuit that would see “short speeches by immoderate section clergy focusing connected Boston’s history.” The emblem bore the Latin cross.

The city, which had granted 284 requests to rise flags successful transportation with galore kinds of events implicit a 12-year period, rejected the application, saying that flying the emblem would magnitude to authorities endorsement of religion. Camp Constitution sued, arguing that the determination violated its close to escaped speech.

As the statement reached its conclusion, Justice Elena Kagan said the metropolis had made an understandable mistake successful relying connected the portion of the First Amendment that prohibits authorities constitution of religion erstwhile it should person been focusing connected its escaped code clause. Putting a imperishable transverse connected the extortion of City Hall would interruption the constitution clause, she said, but banning a spiritual radical from conveying its connection successful a transient mounting unfastened to tons of speakers violates the amendment’s warrant of state of speech.

The cardinal question successful the case, Shurtleff v. City of Boston, No. 20-1800, was whether the metropolis had created a nationalist forum by allowing backstage groups to usage its flagpole oregon whether it was conveying its ain code by choosing and endorsing the flags it approved. When the authorities is speaking for itself, it is immune from First Amendment scrutiny.

Sopan Joshi, a lawyer for the national authorities arguing successful enactment of Camp Constitution, said that “it tin beryllium a truly good enactment betwixt the authorities soliciting messages from 3rd parties to assistance signifier its ain connection connected the 1 manus and serving arsenic a conduit for the 3rd parties to explicit their ain messages connected the other.”

He said the emblem programme successful Boston had created a nationalist forum successful airy of the fig of flags approved and the cursory reappraisal astir applications received. He utilized an analogy: Government code is similar a curated symposium, portion a nationalist forum is similar an open-mic night.

A unanimous three-judge sheet of the United States Court of Appeals for the First Circuit, successful Boston, ruled for the city, mostly connected the crushed that the authorities is entitled to take the messages it endorses.

Even arsenic the Supreme Court seemed poised to cull the presumption that the hundreds of flags the metropolis had allowed were each authorities speech, immoderate justices disquieted astir the consequences of a wide ruling, asking, for instance, whether the metropolis would person to alert a emblem bearing a swastika.

Mathew Staver, a lawyer for Camp Constitution, said yes. He added that “an informed observer” acquainted with the city’s emblem programme and its past would cognize that the flags flown connected the 3rd flagpole represented backstage speech.

That assertion met a skeptical response.

Such an perceiver indispensable beryllium “very informed,” Justice Kagan said. As for the much emblematic ones, she said, “all they cognize is: ‘I’ve seen the City of Boston emblem present a 1000 times, and present I spot different flag. It indispensable beryllium the City of Boston decided to bash thing other today.’”

Douglas Hallward-Driemeier, a lawyer for Boston, said determination were limits to what the metropolis indispensable beryllium made to allow. “Private parties are escaped to question their flags connected City Hall Plaza oregon adjacent rise a impermanent flagpole there,” helium said, “but they cannot commandeer the city’s flagpole to nonstop a connection the metropolis does not endorse.”

The solution, immoderate justices suggested, was for the metropolis to workout much power implicit the process, truthful that it would beryllium plain that it was endorsing the messages the flags conveyed.

Justice Amy Coney Barrett sketched retired what specified an attack mightiness include.

“The City of Boston sits down, asks what’s going to beryllium expressed and says, ‘Yes, this is an thought that Boston tin get behind,’” she said. “And a authorities authoritative participates successful the emblem raising, participates successful the ceremony, communicating that, ‘Yes, Boston is blessed to observe and pass pridefulness successful Juneteenth, but, no, Boston is not going to enactment successful a emblem raising for the Proud Boys.’”

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