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Boston Violated First Amendment by Prohibiting Christian Flag, Rules Unanimous Supreme Court

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Published on: May 7, 2022

WASHINGTON, D.C. — In a unanimous ruling, the U.S. Supreme Court has concluded that the City of Boston violated the First Amendment when it refused to fly a Christian flag on a city flagpole while allowing other flags. “Through history, the suppression of unpopular religious speech and exercise has been among the favorite tools of petty tyrants,” noted Justice Neil Gorsuch in his concurring opinion. “The day governments in this country forage for ways to abandon these foundational promises [of the free exercise of religion] is a dark day for the cause of individual freedom.” Weighing in before the U.S. Supreme Court in Harold Shurtleff v. City of Boston, Rutherford Institute attorneys had sounded the alarm over attempts by Boston officials to use the “government speech doctrine” to censor or discriminate against expressive activities by Christians that take place in public which may be perceived as unpopular or politically incorrect.

Mark D. Taticchi, D. Alicia Hickok, Renee M. Dudek, Elizabeth M. Casey, and Nicholas J. Nelson of Faegre Drinker Biddle & Reath LLP helped to advance the arguments in the amicus brief.

“This is exactly the slippery slope that we have been warning about for years when it comes to the so-called ‘government speech doctrine’ which empowers the government to censor private speech whenever it occurs in a public or government forum,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “What started out years ago as attempts to use the ‘government speech doctrine’ to censor license plates that were perceived as politically incorrect has snowballed into broad efforts to whitewash and restrict any First Amendment-protected expression, including speech that is political or religious in nature, that occurs in public places.”

For twelve years, the City of Boston had allowed groups to temporarily fly a flag on one of its three flagpoles in front of City Hall. The City’s website stated that it wanted to create an environment where everyone feels included and to foster diversity and build connections among Boston’s many communities. The application form noted that the City sought to accommodate all applicants seeking to take advantage of its public forums. For that purpose, the City had approved 284 flag-raising events and had never denied any group’s application to fly its flag until 2017 when Camp Constitution applied to fly a Christian flag as part of an event featuring speeches by local clergy on Boston’s history as part of an effort to enhance understanding of the country’s Judeo-Christian moral heritage. Although the City had previously allowed groups to fly flags of other countries and flags celebrating causes such as gay pride, the City denied Camp Constitution’s flag-raising request. Camp Constitution’s second request, to raise a Christian flag for an event to celebrate the contributions which Boston’s Christian community has made to the City’s cultural diversity, was also not granted. Although both the district court and the appellate court ruled in favor of Boston, affirming its decision not to allow Camp Constitution to fly a Christian flag, the U.S. Supreme Court concluded that Boston’s actions, prohibiting the Christian flag while allowing other flags, were unconstitutional.

Shurtleff v. Boston:

Supreme Court Opinion

The Institute’s amicus brief

Article posted with permission from John Whitehead

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