In Shurtleff v. City of Boston, (Sup.Ct., May 2, 2022), the U.S. Supreme Court held unanimously that Boston violated the free speech rights of Camp Constitution when it refused to allow it to briefly fly a Christian flag on a third flagpole outside city hall which private groups have used to fly flags of their choice for ceremonies. In the past, the city had approved some 50 different flags and had never before refused a request. Boston contended that the flag was government speech and cited Establishment Clause concerns in barring the Christian flag. The Court rejected that contention, saying in part:
We conclude that, on balance, Boston did not make the raising and flying of private groups’ flags a form of government speech. That means, in turn, that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint “abridg[ed]” their “freedom of speech.”
Justice Breyer wrote the majority opinion which was joined by Chief Justice Roberts and Justices Sotomayor, Kagan, Kavanaugh and Barrett. Justice Kavanaugh also filed a concurring opinion. Justice Alito, joined by Justices Thomas and Gorsuch filed an opinion concurring only in the judgment, saying in part:
...I cannot go along with the Court’s decision to analyze this case in terms of the triad of factors—history, the public’s perception of who is speaking, and the extent to which the government has exercised control over speech.... [T]reating those factors as a test obscures the real question in government-speech cases: whether the government is speaking instead of regulating private expression.
Justice Gorsuch, joined by Justice Thomas, filed a concurring opinion saying in part:
Not a single Member of the Court seeks to defend Boston’s view that a municipal policy allowing all groups to fly their flags, secular and religious alike, would offend the Establishment Clause.
How did the city get it so wrong? To be fair, at least some of the blame belongs here and traces back to Lemon v. Kurtzman, 403 U. S. 602 (1971)....
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. Lemon ignored the original meaning of the Establishment Clause, it disregarded mountains of precedent, and it substituted a serious constitutional inquiry with a guessing game. This Court long ago interred Lemon, and it is past time for local officials and lower courts to let it lie.
