Banners in Boston: Flags, Faith, Fairness, and the First Amendment

A recent decision from the U.S. Supreme Court in the case of Shurtleff v. City of Boston is an interesting intersection of multiple First Amendment doctrines, including principles concerning free speech and religious establishment. Although the Court’s decision was unanimous against the City of Boston, the justices disagreed as to the rationale underlying their decision and the legal framework that applied. Although the case was, strictly speaking, a free speech case, the outcome of the case may have implications for religious liberty and faith-based organizations.

The Facts

In front of Boston’s City Hall, there are three flag poles; one for the American Flag, one for the Massachusetts Flag, and one for . . . well, pretty much anyone else. That’s because the City of Boston allows private groups to hold ceremonies on the City Hall plaza, during which participants may hoist a flag of their choosing on the third pole. Over the years, the City has permitted hundreds of such ceremonies, with groups hoisting flags representing everything from LGBTQ Pride, to foreign nations, to first responders, to local businesses.

But when Harold Shurtleff, the director of an organization called Camp Constitution, applied to hold an event on the plaza to commemorate Constitution Day and fly what he described as a “Christian flag” on the third pole, the City denied the request. The City’s reasoning for the denial was that it believed that permitting a Christian flag to be flown at City Hall would violate the Establishment Clause, a provision of the First Amendment that forbids the government from establishing religion.

Mr. Shurtleff sued the City, arguing that the City violated the Free Speech Clause of the First Amendment by engaging in viewpoint discrimination, i.e., permitting flags expressing other messages but denying a flag representing Christianity. The federal district court ruled that the flags flown on the plaza were not private expression, but rather constituted “government speech” and were therefore not subject the First Amendment’s prohibition against viewpoint discrimination. Since the flags permitted by the City constituted government speech, the district court reasoned, the City had the right to choose which flags it did and did not want flown on City property. The trial court ruled against Mr. Shurtleff and a federal appeals court affirmed the district court’s ruling. The U.S. Supreme Court reversed both lower court rulings, deciding in favor of Mr. Shurtleff.

Some First Amendment Context

To best appreciate the significance of the Supreme Court’s decision, it is important to understand the First Amendment doctrines that were at issue in the case, namely the Public Forum Doctrine, the Government Speech Doctrine, and the Lemon Test for religious establishment.

1. The Public Forum Doctrine

A public forum is a government-owned property, venue, or medium that facilitates private expression or assembly. There are different categories of public fora, each of which may be subject to different kinds of regulation by the government. But while the government may impose reasonable restrictions on the use of a public forum regulating the time, place, and manner of the expression, what the government may never do is engage in viewpoint discrimination.

For example, suppose a state university maintains a lecture hall. Under the Public Forum Doctrine, the university may set the times at which groups may hold lectures, exclude non-lecture expression such as music recitals from the lecture hall, limit lecture attendance to the student body, and even regulate the topics on which lectures may be given. But what the university may not do is permit lectures from one viewpoint while disallowing lectures from a differing viewpoint. This is viewpoint discrimination and it violates the Free Speech Clause of the First Amendment.

The government also may not exclude expression from a public forum on the grounds of its religious content. For example, public schools may not make their facilities available for secular private groups to use but deny religious groups use of those facilities, even if a school’s reason for doing so is to avoid the appearance of school support or endorsement of religion.¹

2. The Government Speech Doctrine

Public Forum Doctrine issues are often intertwined with another area of First Amendment jurisprudence, the Government Speech Doctrine. That doctrine provides that the government has the prerogative of speaking for purposes of implementing programs, forming public policy, and expressing civic values. Therefore, the Free Speech Clause does not prohibit the government from declining to express a viewpoint in its own speech. For example, a local government may erect a public monument honoring soldiers who served in a particular war, but it is not obliged to erect monuments expressing opposition to that war. When the government declines to express viewpoints or when it expresses one viewpoint to the exclusion of another, that does not constitute viewpoint discrimination under the First Amendment.

But sometimes it is difficult to distinguish government speech from private expression. In 2015, the Supreme Court decided the case of Walker v. Texas Div., Sons of Confederate Veterans, Inc.² That case involved an organization that petitioned the Texas Department of Motor Vehicles to create a specialized license plate that featured Confederate flags to commemorate Texans who had fought for the Confederacy in the American Civil War. The DMV, which had put out over three hundred personalized license plates for various groups and causes, also had a policy that it would not permit specialty plates that it judged to be offensive. The DMV denied the Confederate plates and was sued under the First Amendment. The U.S. Supreme Court, in a 5-4 decision, ruled that license plates were government speech and therefore the DMV was free to regulate the expressions on its own medium.

In making this ruling, the Court in Walker articulated a three-factor analysis for determining whether expression was government speech: (1) the history of the expression at issue; (2) the public’s likely perception as to who (the government or a private person) is speaking; and (3) the extent to which the government has actively shaped or controlled the expression.

3. The Lemon Test

Another First Amendment doctrine that came into play in the Shurtleff case was the so-called Lemon Test, a three-prong test for determining when the government violates the First Amendment’s prohibition against state establishment of religion. First articulated in the U.S. Supreme Court’s 1971 decision in Lemon v. Kurtzman³, the Lemon Test states that the government violates the Establishment Clause when its actions: (1) are taken without a secular purpose; (2) have the effect of advancing or inhibiting religion; or (3) result in excessive entanglement between church and state.

The difficulty with the Lemon Test is that it has fallen out of favor in the federal courts as a workable standard for applying the Establishment Clause. This is because Lemon is such a broad and stringent standard that its consistent application would result in several American civic traditions involving religion (e.g., legislative prayer and “In God We Trust” on coins) being rendered unconstitutional. Although the test occasionally shows its head in the lower federal courts, the U.S. Supreme Court has not applied Lemon for over twenty years. Instead, successive Supreme Court decisions in the past two decades have explored less rigorous standards for Establishment Clause violations, criticizing Lemon in the process. This zombification of the Lemon Test led the late Justice Antonin Scalia to describe Lemon as a doctrine that “haunts Establishment Clause jurisprudence like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”

The Court’s Decision . . . and Multiple Opinions

Now that we have a lay-of-the-land with respect to these First Amendment issues, back to the Shurtleff case. The majority opinion in Shurtleff was written by Justice Breyer, and joined by Chief Justice Roberts, and Justices Sotomayor, Kagan, Kavanaugh, and Barrett. Justice Alito wrote a concurring opinion differing from the majority’s test for determining what constitutes government speech. Justices Gorsuch and Kavanaugh each wrote separate concurring opinions, both of which analyzed the case from an Establishment Clause perspective and critiqued any continued application of the disfavored Lemon Test.

1. Public vs. Private Pennant: Justice Breyer’s Majority Opinion

Justice Breyer’s majority opinion was a straightforward application of the Government Speech Doctrine and three-factor Walker analysis for determining government speech. Applying the first Walker factor, the majority found that history and tradition of flag-raising favored Boston because flags hoisted above government buildings have historically been a form of government expression. With respect to the “public perception” factor, Justice Breyer said that this factor did not tip the scale in either direction because an observer’s perception of whether the flag on the third pole was expressing a message directly from the City depended on whether they were observing the flag when the corresponding group was holding its ceremony during the flag raising. Finally, with respect to the control factor, Justice Breyer concluded that the City exercised no control over the flags selection at all. Other than the flag Mr. Shurtleff requested to fly, City officials had not even looked at other flags before granting any group permission to raise them. This factor, Breyer said, weighed heavily against the notion of the flags being government speech. Thus, under the Walker analysis, Justice Breyer found that the flags were private expression in a public forum, not government speech.

Applying the Public Forum Doctrine, Justice Breyer concluded that the City’s refusal to let Camp Constitution fly their “Christian flag” was viewpoint discrimination and therefore violated the First Amendment.

2. Walking away from Walker: Justice Alito’s Concurrence

Justice Samuel Alito concurred with the majority’s ruling that Boston’s flag-raising program was not government speech and also agreed that its denial of Camp Constitution’s request was viewpoint discrimination. However, Alito rejected the Walker analysis for determining government speech, arguing instead for a more narrow, bright-line standard. Government speech, Alito argued, only occurs when the government itself “purposefully expresses a message of its own through persons authorized to speak on its behalf, and in doing so, does not rely on a means that abridges private speech.”

3. Sour about Lemon: Justice Gorsuch’s Concurrence

In addition to Justice Alito’s concurring opinion, two other Justice wrote concurrences, both of which confronted the Establishment Clause issue. Justice Kavanaugh filed a very short concurrence in which he briefly pointed out that the City’s notion that the government could not permit private religious displays on public property was clearly inconsistent with several of the Court’s previous Establishment Clause decisions.

Justice Gorsuch filed a much longer concurring opinion in which he identified the central issue in the case as being an obstinate reliance upon the Lemon Test in the lower courts. Gorsuch provided a biting critique of Lemon, explaining that it was a subjective standard that vested courts with unreasonable discretion to curb religious expression in the public square and that it was a dramatic departure from the original meaning of the Establishment Clause, which was to guard against religious coercion by the government.

Gorsuch, like the late Scalia, lamented that Lemon kept reappearing despite having been put to death: “To justify a policy that discriminated against religion, Boston sought to drag Lemon once more from its grave . . . This Court long ago interred Lemon, and it is past time for local officials and lower courts to let it lie.”

Flagging the Future

While the Shurtleff decision is not, strictly speaking, a case about free exercise of religion, it is a case about government discrimination against religious speech. The decision can be read as a warning to state and local governments who might seek to exclude religious groups or religious viewpoints from the use of public fora, eligibility for public funds, and participation in public programs. Despite the lack of consensus among the justices as to the legal rationale, the unanimous Shurtleff decision hoists high the banner of inclusion and fairness for religious minorities and ensures that faith-based parties and messages have equal access to the public square.

_________________________________________

¹ See Good News Club v. Milford Central School, 533 U. S. 98, 112 (2001).

² 576 U. S. 200 (2015).

³ 403 US 602 (1971).

Featured Image by Rebecca Sidebotham.