The U.S. Supreme Court ruled unanimously Monday that the city of Boston must let a Christian group fly its flag over city hall, but the decision was sufficiently narrow that other cities, indeed Boston itself, could construct rules that would limit flag flying to government-approved messages.
Just outside Boston's city hall, once named "the world's ugliest building," are three flagpoles. One flies the American Flag, the second flies the state flag, and the third usually flies the city's flag. Usually — because Boston has, for years, allowed the hoisting of other flags on the third pole when groups get permission to hold ceremonies on the city plaza. Between 2005 and 2017, Boston approved the raising of 50 such flags, most of them marking the national holidays of other countries.
Still, a few of the flags were associated with other groups or causes—national Pride Week, emergency medical service workers, and a community bank. In fact, the city had never rejected a flag-raising request until 2017 when Harold Shurtleff, the director of an organization called Camp Constitution, asked to hold a flag raising ceremony for a "Christian Flag."
The city, fearing that a Christian flag would be viewed as an unconstitutional government endorsement of a particular religion, rejected the application, and Shurtleff challenged the rejection, losing in two lower courts but winning in the Supreme Court on Monday.
The decision, written by Justice Stephen Breyer, managed to navigate a clash involving both religion and politics, without wreaking havoc. As Yale law professor Akhil Amar put it in an NPR interview, Breyer "found the sweet spot." He was able to "take a complicated fact pattern and find the common denominator,"—namely that Boston had a "come one, come all" policy that didn't apply to this Christian group.
"The key," wrote Breyer, was to what extent Boston actually controlled the messages on the flags. And the answer, he said, was not at all. The city's lack of meaningful involvement, he said, led the court to conclude that these flag raisings were not government speech—where the government can control its message—but private speech, in fact religious speech, that cannot be regulated by the government.
But, in a nod to the city, Breyer noted that nothing prevents Boston from changing its policies to exclude private speech going forward. It could—like San Jose, Calif.—explicitly say that flags are the city's speech and not intended to serve as a forum for free expression by the public. It could even require that a city council member sponsor a flag before it can be raised.
In fact, Boston suspended its policy last fall when the Supreme Court agreed to review the current policy, so all of these options are on the table now.
Three justices—Samuel Alito, Neil Gorsuch and Clarence Thomas—agreed with the result in the case, but rejected Breyer's reasoning. They wrote 30 pages worth of concurring opinions. In contrast, the 13-page majority opinion was classic Breyer, managing to achieve consensus in a restrained opinion that left both sides with a clearer idea of what is and is not permissible.
It is an approach that, as University of Georgia Law Professor Sonja West observes, "frustrates" some of Breyer's conservative colleagues "who are eager to push the court further and faster, particularly on issues affecting religious speakers." But on a court that has been deeply divided along liberal/conservative lines of late, Breyer's skill in bridging that divide will likely be sorely missed when he retires at the end of the term this summer.