A man holds a flag he describes as “The Christian Flag.” Right-wing Proud Boy and Patriot Prayer adherents, “Three-Percenters”, and other armed allies of the extreme right demonstrated at Portland, Oregon’s Justice Center on August 22, 2020.
John Rudoff | AP
The Supreme Court unanimously ruled Monday that the city of Boston violated the Constitution when it refused to fly an explicitly Christian flag outside city hall.
The court ruled that since the city government had allowed other citizens to use the flagpole to express a variety of messages, its rejection of the cross-bearing flag violated the free speech rights of the religious group that proposed it.
“Boston’s flag-raising program does not express government speech,” Justice Stephen Breyer wrote in the opinion of the court, which reversed a lower court’s judgment.
The dispute hinged on the question of whether the flags being flown under the city hall program were expressing the government’s viewpoint, or whether the city had opened the flagpole to citizens to express themselves.
Boston has since 2005 allowed dozens of flags to be flown on one of the three flagpoles outside city hall, some of which expressed the views of private groups or causes. The city had not denied any requests — until 2017, when the director of a group called Camp Constitution asked to fly a flag honoring the “contributions of the Christian community.”
The blue-and-white flag prominently bears a solid-red Christian cross. A city commissioner rejected the Christian flag, fearing it might run afoul of the Constitution’s prohibition on a government establishment of religion.
A federal district court and a federal appeals court sided with Boston, holding that the flags being flown from the city hall flagpole amounted to government speech.
The high court, however, looked at “the extent to which Boston actively controlled these flag raisings and shaped the messages the flags sent,” Breyer wrote.
“The answer, it seems, is not at all,” Breyer said. “And that is the most salient feature of this case.”
The opinion from Breyer came less than a week after the 83-year-old justice participated in his final round of oral arguments before his retirement this summer. Breyer, one of three liberals on the nine-seat bench, is set to be succeeded by Judge Ketanji Brown Jackson, the first Black woman to become a Supreme Court justice.