What would you think if you were walking past Boston City Hall one day and saw at the building’s entrance an 83-foot-tall flagpole waving a banner with an enormous red Christian cross on it? Well, that might be OK if you are a Christian who attends church. Maybe.
But, if your religion is not listed or you are a nonbeliever or you are concerned about the separation between church and state, you will probably wonder what the heck was going on. You might also wonder why the government displays the symbol of Jesus Christ to citizens who aren’t Christians.
The United States does not allow government to endorse or promote any religion or none at all. The Constitution makes that clear in the 1st Amendment, which says that the government “shall make no law respecting the establishment of religion.”
I know as a non-Christian American that I’m pleased and proud to live in a country that so adamantly protects the rights of the nonmajority and doesn’t impose one set of beliefs on the whole country.
That’s why the U.S. Supreme Court ought to rule against Harold Shurtleff and the religious organization he runs, Camp Constitution, who say their constitutional rights were denied when they were refused permission in 2017 to hang a cross-bearing Christian flag on a flagpole outside Boston City Hall.
Oral arguments in Shurtleff vs. Boston are scheduled for Jan. 18.
But I don’t want it to be too simplistic. There are many nuances to this case.
Shurtleff hoped to be able to participate in the city of Boston’s program that allows third parties to request to have their flags hung from one of three flagpoles at City Hall.
This privilege has been granted to flags from other countries. In recent years, however, it was also granted to organizations flying the LGBT pride flag, as well as groups celebrating transgender rights such as Mother’s Day, Malcolm X, and other events. The flags of third parties are placed where the flag of the municipality is usually flown, near poles bearing banners of the United States of America and the Commonwealth of Massachusetts.
No group had been refused when they applied so Shurtleff decided that he would also get the go-ahead.
But he was refused by the city, who claimed that it would be against the 1st Amendment’s constitution clause to hang the Christian flag on a government flagpole.
Shurtleff’s group refused to buy it. They sued, arguing that by “taking all comers” in the past, the city had transformed the flagpole into a “public forum,” and that the message being sent by the flag was now “public speech” rather than “government speech,” a critical distinction in the law.
This meant that the government couldn’t decide what messages were acceptable or not. It would be okay to send religious messages. In fact, it would be a violation of the 1st Amendment for the city to deny their application on the basis of their viewpoint or the content of their message.
They claimed that the flagpole had become a public platform on which all views could be heard.
The American Civil Liberties Union and the Biden administration agree with that position; lower courts disagree.
But, I am skeptical that a tall flagpole at the center of government in front of City Hall can be considered a public forum. Lower courts disagree.
It’s not like a demonstration outside City Hall where the signs and banners clearly represent the protesters’ speech. Official is a flagpole placed outside of a government building. It’s institutional. What hangs there surely appears to have been approved and condoned by government. It shouldn’t be endorsed by Christianity or any other religion.
Boston argued, additionally, that it didn’t actually “invite all comers” to fly flags, that the flagpole wasn’t a public forum because the city kept a measure of control, requiring that outside groups apply and allowing only flags that sent messages that met with government approval. The Supreme Court will need to sort through all the details. I trust the justices will rule that the Christian flag should not be waved in front City Hall.
But, I believe Boston shouldn’t have established its flag program. It should have been obvious to anyone who looked at flags flying from flagpoles of the government that this would blur the lines between private and official speech. It’s almost a given that someone will promote a message the government does not want to promote when government gives out traditional speaking spaces.
For example, Texas had specialty plates with graphics that allowed for Confederate flags. That case went to the U.S. Supreme Court, where Texas won.
In Georgia, the International Keystone Knights of the Ku Klux Klan sought, under a state “adopt-a-highway” program, to have the group’s name posted on signs along a one-mile stretch of State Route 515. The Klan won in state Supreme Court.
Duh! How can local governments miss these disputes?
But even though Boston was not entirely in the right it is Shurtleff who is most troubling. If this argument prevails, we might soon see not only religious flags at City Hall but also Nazi swastikas or Klan banners.
The Constitution allows speech to be protected by religious groups, white supremacist organizations, advocates for homeless, and anti-tax protesters. Let them fly banners and signs of all kinds. However, they should not be able to wave signs and banners on city flagpoles.