Boston violated First Amendment when city denied Christian flag, Supreme Court rules

The U.S. Supreme Court held up a red flag for the city of Boston on Monday, ruling that the Hub violated the First Amendment when city officials denied a conservative group from flying a Christian flag at City Hall.

The decision was unanimous in favor of West Roxbury man Hal Shurtleff, who had sued the city of Boston after he had asked in September 2017 to fly a flag containing the cross in honor of Constitution Day. The city for years has allowed groups to fly their own flags from a City Hall flagpole on special occasions.

But city officials under then-Mayor Martin Walsh rejected the request from Shurtleff and the conservative group Camp Constitution. He sued Boston in federal court as a result, and both the U.S. District Court in Massachusetts and the First Circuit U.S. Court of Appeals had ruled against him before the Supreme Court’s 9-0 ruling on Monday.

“We weren’t surprised by the decision,” Shurtleff told the Herald on Monday. “We’re very excited about it.”

“This sets a precedent not just with flags, but with other issues,” he later added. “Our mission is to teach people about the Constitution and the First Amendment, and people should have a better understanding of that now.”

The Supreme Court case centered on a flagpole outside Boston City Hall. For years, Boston has allowed private groups to request using the flagpole to raise flags, and the city has approved hundreds of requests to raise dozens of different flags.

The city did not deny a single request to raise a flag until Shurtleff asked to fly a Christian flag. The city has said it denied Shurtleff’s request because it believed flying a religious flag at City Hall could violate the Establishment clause under the First Amendment — which prohibits the government from establishing a religion.

But in the Supreme Court ruling, Justice Stephen Breyer wrote, “Because the flag-raising program did not express government speech, Boston’s refusal to let petitioners fly their flag violated the Free Speech Clause of the First Amendment.”

“When the government does not speak for itself, it may not exclude private speech based on ‘religious viewpoint’; doing so ‘constitutes impermissible viewpoint discrimination,’ ” the retiring justice added.

Shurtleff said it was never the group’s intention to bring a lawsuit to the Supreme Court, but emphasized that the organization had an “obligation” to sue when the city denied them the flag raising.

When asked whether this ruling opens the doors for Nazis to fly their flag at Boston City Hall, Shurtleff said, “I don’t think Nazis will have much of a chance flying their flag in Boston.”

A city of Boston spokesperson said in response to Monday’s ruling, “We are carefully reviewing the Court’s decision and its recognition of city governments’ authority to operate similar programs. As we consider next steps, we will ensure that future City of Boston programs are aligned with this decision.”

Americans United for Separation of Church and State President and CEO Rachel Laser said in a statement, “This ruling could undermine church-state separation if it is abused in ways that end up favoring the dominant religious majority. But governments might avoid that by closing the forum at any time, as the court noted.”

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