A unanimous U.S. Supreme Court ruled May 2 that a municipality can’t deny the request of a Christian organization to fly a Christian flag at city hall while allowing other private groups the same privilege.
In Shurtleff v. City of Boston, justices voted 9-0 that a city can’t single out a Christian group for discrimination.
Justice Stephen G. Breyer, who is retiring at the end of the term that ends next month, wrote the opinion. The court concluded that the city’s “refusal discriminated based on religious viewpoint and violated the Free Speech Clause” of the First Amendment.
Attorney Mathew D. Staver, a former senior pastor who founded the Orlando, Florida-based Liberty Counsel in 1989 with his attorney wife, Anita, defended Bostonian Harold Shurtleff of the Christian organization Camp Constitution. Staver maintained that the city violated the First Amendment by preventing the hoisting of the Christian flag in observance of Constitution Day. The city maintained that any private party could apply to fly a flag outside city hall, but balked at the notion of raising a Christian flag — which has a red cross in the upper left corner — because of a concern over the First Amendment’s Establishment Clause. The city said permitting the banner to wave in front of city hall might be construed as endorsement of a particular religion.
Staver noted that the city allowed 284 flag-raisings by 50 unique groups in the 12 years before Shurtleff made his request in 2017. That included the flags of Cuba and China, both communist nations. Staver maintained the city discriminated against Camp Constitution because of its Christian message and invoked the Establishment Clause as a mistaken defense as a guise for censorship.
The high court tended to agree. Breyer wrote that the First Amendment prevents municipalities from discriminating against speakers based on their viewpoints. He pointed out that Boston had no written policy limiting use of the flagpole based on the content of the flag.
“The city’s practice was to approve flag raising without exception,” Breyer wrote. “It has no record of denying a request until Shurtleff’s.”
AG legal counsel Kristen Waggoner applauded the court’s decision.
“When the government opens a forum to allow expression for ‘all applicants,’ it cannot single out religious expression for exclusion,” says Waggoner, who has argued before the Supreme Court. “This case was about the First Amendment’s guarantee that every American, without exception, is protected from government censorship and punishment. Targeted discrimination against religious speech and speakers is plainly unconstitutional. In this decision, the Supreme Court upheld the right of religious citizens to participate equally in the public square.”
In oral arguments in January, U.S. Assistant Solicitor General Sopan Joshi joined in support of Shurtleff, arguing that the city still could exclude offensive flags representing such groups as the Nazi Party or Ku Klux Klan. A variety of conservation Christian groups filed amicus briefs on behalf of Shurtleff.
In the May 2 ruling, U.S. Supreme Court Justices Brett Kavanaugh, Samuel Alito, and Neil Gorsuch all wrote separate concurring opinions.
Alito pointed out that before Boston denied the request, “the flags flown reflected a dizzying and contradictory array of perspectives.” That includes flying the LGBT “pride flag,” but also the flag of Ethiopia — where homosexual acts are punishable for a minimum one-year prison sentence.
Gorsuch observed that Boston had made no attempt to reject requests to fly national flags of nations that contain religious symbols, such as the Christian cross or Islamic star and crescent. He said the U.S. Constitution is designed to ensure respect and tolerance for religion, not its eradication.
“Through history, the suppression of unpopular religious speech and exercise has been among the favorite tools of petty tyrants,” Gorsuch wrote in his concurring opinion. “The day governments in this country forage for ways to abandon these foundational promises is a dark day for the cause of individual freedom.”
Staver, 65, has a long history of defending Christian causes in court. In 1994, he argued before the U.S. Supreme Court in Madsen v. Women’s Health Center, which upheld, in part, the right to protest outside abortion facilities. He served as dean of the Liberty University law school from 2006-14.
Lead Photo: Mathew Staver (at microphone) discusses the case after arguments before the Supreme Court in January.
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