Unanimous U.S. Supreme Court delivers huge win for religious expression and free speech

The religious in America are no longer second-class citizens in the public square. 

That’s the impact of a remarkable unanimous U.S. Supreme Court ruling Monday that held the city of Boston unconstitutionally prohibited the flying of a Christian flag on a public plaza while having allowed the flags of other groups and causes. 

“Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class,” Justice Brett M. Kavanaugh wrote in his own opinion concurring with the lead opinion. 

Boston allowed private groups to hold events and fly a related flag on a plaza in front of City Hall, including organizations touting certain nationalities, gay pride and even a community bank. But in 2017, a city official denied a similar flag-flying request by Harold Shurtleff, founder of Camp Constitution – a group that seeks “to enhance understanding of the country’s Judeo-Christian moral heritage.” 

The city official feared the flag would violate the First Amendment’s “Establishment Clause” that prohibits Congress from establishing a religion. A district court, and then an appeals court, agreed with the city official that the flag was banned “government speech.” 

But even liberal high court justices agreed in Monday’s ruling that they were wrong. 

Justice Kavanaugh, noting repeated precedent, wrote that “a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like. 

“On the contrary, a government violates the Constitution when (as here) it excludes religious persons, organizations, or speech because of religion from public programs, benefits, facilities, and the like.” 

As for the various organizations’ flags flown on the plaza, even the majority opinion that included the liberal justices found the flag-flying was not “government speech.” 

“Boston neither actively controlled these flag raisings nor shaped the messages the flags sent,” Justice Stephen G. Breyer wrote in the majority opinion. “Further, Boston told the public that it sought ‘to accommodate all applicants’ who wished to hold events at Boston’s ‘public forums,’ including on City Hall Plaza.”

City officials, Breyer noted, didn’t even request to see the flags ahead of time. “Indeed, the city’s practice was to approve flag raisings without exception – that is, until petitioners’ request. … Boston’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads the Court to classify the third-party flag raisings as private, not government, speech. 

“Because the flag-raising program did not express government speech, Boston’s refusal to let petitioners fly their flag violated the Free Speech Clause of the First Amendment. When the government does not speak for itself, it may not exclude private speech based on ‘religious viewpoint’; doing so ‘constitutes impermissible viewpoint discrimination’.”