On Tuesday, the Supreme Court heard arguments as to why the city of Boston refused to fly a Christian flag outside of city hall as part of its program to celebrate diversity. It has been known to celebrate veterans, paramedics, sports teams, and even LGBT pride by flying third party flags outside of city hall. But when a group applied to fly a "Christian flag" in 2017, the city officials rejected the request.
According to USA Today, the flag, which was colored blue and white and showed a Latin cross in one corner, would violate the city's long-held principle of separating church and state. Boston also argued that the flags they choose to fly on the flagpole are government speech and the city officials have the right to choose which flags they prefer to fly.
But the Supreme Court justices questioned if the city negated their own rules by approving other requests to fly flags except the one made by the religious group in 2017.
"Is it consistent with the principles of the free speech clause if you say anybody can speak, except we are going to monitor what is said and we're not going to allow religious speech?" Associate Justice Samuel Alito argued. "The court has said you can't do that."
Meanwhile, Associate Justice Sonia Sotomayor, who also heard arguments on Tuesday remotely from her chambers at the Supreme Court building, argued, "To an ordinary observer walking past City Hall, if you see a flag on the pole, you think it's City Hall speaking."
Both conservative and liberal members of the court suggested that city officials should be more involved in the policy, which conflict it caused could easily be remedied. The liberal Associate Justice Elena Kagan remarked, "If you look at the lack of control over this flagpole, it's hard not to think of it as a public forum."
According to Fox Business, the flag at the center of the dispute belonged to Camp Constitution, an organization that aims "to enhance understanding of our Judeo-Christian moral heritage, our American heritage of courage and ingenuity, including the genius of our United States Constitution, and the application of free enterprise." The organization was founded by Harold Shurtleff, who filed the case against Boston.
Shurtleff's lawyer, Attorney Mathew Staver argued that Boston's flag-flying policy specifically said "public forum," which means that the flag would be an expression of the private speech of the group that sent the application to fly it outside city hall. Boston's rejection of their request is "clearly viewpoint discrimination" that violates the First Amendment right to free speech.
The justices appeared to side with Staver as they discussed whether the flags were government or private speech. They said that this could be determined by how a casual observer would interpret the flags. Justice Stephen Breyer also pointed out that the location of the flags was right outside the Boston city hall, alongside the state flag and the flag of the United States. Justice Breyer remarked, "Of course you're going to think it has something to do with the city."
But Justice Alito noted that the Boston city hall had flown flags for the likes of Cuba and the People's Republic of China, both of which should not appear to represent Boston's city government. Boston's attorney Douglas Harry Hallward-Driemeier said that Boston would have permitted the Christian flag if it had been presented in the context of Constitution Day, as Justice Amy Coney Barrett suggested, and not as a Christian flag.
