Boston’s Flag-Raising Program Does Not Constitute Government Speech

In another Supreme Court case that was decided last year, the court unanimously found that the flag-raising program in Boston does not constitute government speech and thus the city’s refusal to fly a Christian flag violated the organization’s First Amendment rights. In the case Shurtleff v. Boston, the court further abandoned the Lemon Test discussed previously and found that the government may not exclude certain religious viewpoints when it is not speaking for itself.

The City of Boston’s Flag-Raising Program

For years, the City of Boston had allowed outside groups to apply to fly their own flags at city hall as part of the city’s flag-raising program. The city had three flagpoles and flew the U.S. flag, the POW/MIA flag, the Commonwealth of Massachusetts flag and the City of Boston flag, but would allow other groups to apply to fly their own flag in place of the Boston flag for limited periods of time. After the Christian group, Camp Constitution, applied to fly their flag, the city denied the application for the first time in the program’s history, which spanned approximately 284 applications. The city claimed that flying the Christian flag could violate the Establishment Clause of the Constitution by seeming to endorse specific religious views. However, the Christian group sued, claiming the city was violating their free speech rights.

District Court and Court of Appeals Side with City of Boston

The District Court and 1st Circuit Court of Appeals found the city did not violate the Christian group’s first amendment rights by refusing to fly their flag, as these courts found that flags flown at city hall amounted to government speech. The city did allow the Christian group to hold an event at city hall, but disallowed the group from participating in the flag-raising program. In its decision, the court referenced previous Supreme Court cases Pleasant Grove v. Summum (2009) and Walker v. Sons of Confederate Veterans (2015), which found that monuments in public parks and specialty vehicle license plates constituted government speech, respectively.

Supreme Court Overrules Previous Decisions on Flag-Raising Program

In its 9-0 ruling, the Supreme Court found the City of Boston violated the Christian groups’ First Amendment Rights when it refused to fly their flag, and that the city’s flag-raising program did not constitute government speech. The majority found the city cannot claim it is government speech when it had previously approved hundreds of applications without issue and had not denied an application until the Christian group came along. As such, since it was not raising flags as a form of government speech, and “The Free Speech Clause of the First Amendment disallows the government from engaging in ‘impermissible viewpoint discrimination,’ ” the city was discriminating against Camp Constitution based on its religious viewpoint.

Importantly, and bringing us back to the overturning of Lemon v. Kurtzman, Justice Gorsuch criticized the “Lemon Test” and argued that “Boston erroneously relied on the now-abandoned Lemon test, leading it to believe that flying the flag would violate the Establishment Clause.”

Response to the Decision

Groups from across the political spectrum, from the American Civil Liberties Union to the Alliance Defending Freedom hailed the decision as a win for free speech rights and “the right of religious citizens to participate in the public square.”

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Each week, the Universal Life Church’s blog focuses on documenting the most noteworthy cases involving the required separation between church and state. Despite required Constitutional separation, many fear that the Supreme Court’s current majority could erode these constitutional safeguards. Our blog focuses on describing matters in a way that objectively examines both sides and which can be easily understood by readers.