- The Washington Times
Tuesday, January 18, 2022

The attorney for Boston’s government ran into a buzz saw Tuesday at the Supreme Court as the city defended its decision to block a group from flying a banner on a city hall flagpole because of the group’s Christian affiliation.

The city allowed hundreds of other flags to fly over more than a decade, and would have allowed Harold Shurtleff to fly his Camp Constitution flag on Constitution Day — until he mentioned in his application that his group is Christian.

Justices across the ideological spectrum said that was a mistake.

“In the context of a system where flags go up, flags go down, different people have different kinds of flags, then it is a violation of the free speech part of the First Amendment and not an Establishment Clause violation. The end,” said Justice Elena Kagan, an Obama appointee.

Boston says that despite allowing hundreds of other flags to fly over the years, it considers the flagpole — one of three in front of city hall — to be the government’s speech. And the government gets to control what messages it sends.

Christianity isn’t one of those approved messages, said Douglas Hallward-Driemeier, arguing the case for the city of Boston.

“Governments speak from government-owned flagpoles,” Mr. Hallward-Driemeier said. “It would defeat the flagpole’s essential function as the city’s bully pulpit to treat it as a public forum.”

The problem, most of the justices said, is that the city has in fact treated the flagpole as a public forum — and even described the flagpole as a public forum.

There had been 284 flags approved for raising over more than a decade before Mr. Shurtleff’s request. No request had ever been denied.

Groups that filed flagpole requests provided their banners and were present for the duration of the time their flags flew.

On the other hand, the flagpole is owned by the city and usually displays the city’s own flag, which Mr. Hallward-Driemeier said is proof that Boston controls the speech and has the right to refuse messages it does not want to send.

The justices wrestled with what someone would think.

“To an ordinary observer, walking past City Hall, if you see a flag on the pole, you think it’s City Hall speaking,” said Justice Sonia Sotomayor, an Obama appointee.

Justice Kagan said it might be shocking for an average observer to see a Christian flag.

But Justice Samuel A. Alito Jr., a George W. Bush appointee, said the flags of China and Cuba also have flown, and that might be just as shocking as government speech.

Like so many other cases about religion, the justices found themselves searching for limits and line-drawing over First Amendment speech.

Justice Kagan wondered whether a city would have to allow a swastika flag to fly.

“If it’s a designated public forum, I think the answer has to be yes,” said Mathew D. Staver, Mr. Shurtleff’s lawyer.

Justice Kagan said that would effectively end any of these policies.

“No city is going to want to put up a swastika or a KKK flag,” she said.

The Biden administration backed Mr. Shurtleff.

Sopan Joshi, an assistant solicitor general, said the question is whether Boston was treating the flagpole as a sort of “symposium,” where it initiated or invited the flag, or “an open mic night.”

In this case, it was open mic — until the Christian group wanted to participate.

The flag in question is white with a red cross on a blue square in the upper left-hand corner. Mr. Shurtleff’s lawyer said the city has admitted the flag itself wasn’t objectionable, but the connection to a faith-based group made it problematic.

The city policy now bars flags that are offensive, discriminatory or religious.

Equating religious freedom with offensive speech struck some justices as strange, but Mr. Hallward-Driemeier said that wasn’t a statement on religion.

“They are not equal,” he said. “They are just categories of speech the city will not allow.”

He said if Boston loses, it could — and likely would — go back and rewrite the policy to make it clear that the city controls the flagpole and will limit it to flags for special occasions or foreign nations’ flags when there is a population of citizens from those countries living in the city.

Mr. Hallward-Driemeier said that was a defendable line. 

“I don’t think the reasonable observer would think because the Boston flagpole was flying the flag of Turkey the city of Boston was declaring itself Muslim,” he said.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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