Under an application process, Boston, Massachusetts, allowed groups to have their flags raised over one of the three flagpoles outside of Boston City Hall, flagpoles that it had designated as a “public forum.” Over a 12-year period, from 2005 to 2017, the city received 284 applications from private organizations asking to fly their flags, and not a single application was denied. Flags that the city had approved ranged from those of other nations to those celebrating the observance of Juneteenth.
Camp Constitution, a Christian camp, and its director Hal Shurtleff applied to have the city fly a Christian flag on one of the flagpoles outside Boston City Hall on Constitution Day in 2017. Boston denied the application because it was concerned that, by allowing the Christian flag to be raised, the city would violate the Establishment Clause, fearing that flying the Christian flag would signal that the city was endorsing a particular religion. The only reason why the request to fly this flag was denied was not because of the flag itself. Rather it was because of one word in the application – the word “Christian” that preceded the word “flag.” The city official told Mr. Shurtleff that if he changed the name of the flag to a non-religious name on the application, that application would be approved.
Mr. Shurtleff then sued the city for violating his First Amendment rights. After the city prevailed in both the district court and the First Circuit Court of Appeals, Mr. Shurtleff appealed to the Supreme Court. In the meantime, the city discontinued accepting flag raising applications.
In November 2021, the Center joined an amicus brief in support of the right of Mr. Shurtleff and Camp Constitution to display the Christian flag. The brief argued that Boston’s actions violated the First Amendment and that that the Establishment Clause did not excuse Boston’s free speech and free exercise violations.
The Court heard oral argument on January 18, 2022. On May 2, 2022, in a 9-0 decision, the Court ruled that the city of Boston violated the Constitution by censoring a private flag in a public forum open to “all applicants” merely because the application referred to the flag as a “Christian flag.” The Court found that Boston’s flag-raising program did not constitute government speech, and so Boston’s refusal to let Mr. Shurtleff and Camp Constitution fly their flag violated the Free Speech Clause. The Court also found that because Boston admitted it had censored the flag because it was referred to as a “Christian” flag on the application, the censorship was viewpoint discrimination, and there is no Establishment Clause defense for that.
Justice Breyer, in writing the opinion, said: “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.’” In addition, the Court wrote, “Here, Boston concedes that it denied Shurtleff ’s request solely because the Christian flag he asked to raise ‘promot[ed] a specific religion.’ Under our precedents, and in view of our government-speech holding here, that refusal discriminated based on religious viewpoint and violated the Free Speech Clause.”