The Supreme Court heard oral arguments on Tuesday in a case that has united unlikely parties around a thorny question: is it religious discrimination if the city of Boston prevents a man from flying a “Christian” flag on a flagpole outside City Hall where other groups have displayed banners of their own?
Harold Shurtleff, a conservative activist, began pursuing the case after the rejected his application to fly a flag that featured a red cross outside City Hall, even though it had approved 284 straight applications before his arrived.
The city has defended its choice as a way to avoid the appearance of publicly endorsing a religion and thereby violating the Establishment Clause of the Constitution, and lower courts have agreed.
But at the top court on Tuesday, the conservative majority appeared skeptical of this argument.
Justice Brett Kavanaugh suggested the city wouldn’t violate constitutional bars on official religion if it opened a public space to all groups, both religious and secular.
“It seems like we’ve had case after case after case that has tried to correct that misimpression of the establishment clause, and that seems to me what the root cause is here,” he said.
Joe Biden and the American Civil Liberties Union have gotten behind Mr Shurtleff.
In an amicus friend of the court brief, the ACLU argued that by opening the flagpole to general use, it had created an open-access public forum where it couldn’t pick and choose certain viewpoints.
“The City could post a notice stating that 5 it does not endorse the messages conveyed by private flags,” the group wrote in its brief.
“The City also could solicit input from the public about which flags the City itself should display. What the City may not do, however, is designate its flagpole a public forum for private speech and then deny access to an otherwise eligible speaker based on viewpoint.”
Lawyers for the city of Boston argued that even though the public can apply to fly their flags in front of city hall, such official placement before an official building, with official permission, puts flag-raising more in the realm of government action than private speech, where officials are free to choose what message to express.
Bostonians “are free to wave their flags on City Hall Plaza or even raise a temporary flagpole there, but they cannot commandeer the city’s flagpole to send a message the city does not endorse,” attorney Douglas Hallward-Driemeier argued on behalf of city.
Boston has said it will revise its flag policies if it loses at the Supreme Court, where a decision is expected in this case, Shurtleff v City of Boston, this summer.
Some of the court’s liberal minority questioned whether allowing private citizens to fly a flag on official property really moved the action into the realm of personal opinion, versus government endorsement.
Justice Sonia Sotomayor seemed doubtful that any sort of purely public-access flagpole policy, governed by open-access principles, would be workable.
“Really you’re saying a city can’t have an open policy,” she said. “Because no city is going to put up a swastika.”Justice Elena Kagan added that most ordinary people wouldn’t be informed enough to know that seeing a flag in front of a government building was anything but an official statement. The average person “does not know the contours of the flag raising program,” and to think otherwise is “an assumption that verges on a fiction” she said.
