All nine justices of the United States Supreme Court agree in Shurtleff v. City of Boston. The city violated the First Amendment rights of Harold Shurtleff, the director of Camp Constitution, by refusing to allow him to fly the Christian Flag at a public pole where the city allowed private groups to fly their flags indiscriminately.
“The most salient feature of this case is that Boston neither actively controlled these flag raisings nor shaped the messages the flags sent,” wrote Justice Stephen Breyer in his majority opinion as the Court concluded what Boston was engaging in was not government speech. “Boston told the public that it sought ‘to accommodate all applicants’ who wished to hold events at Boston’s ‘public forums.’” Except for those pesky Christians.
Thankfully, the Court 9-0 (though using different rationales) declared, “Boston’s refusal to let petitioners fly their flag violated the Free Speech Clause of the First Amendment.” The Court correctly stated, “When the government does not speak for itself, it may not exclude private speech based on “‘religious viewpoint’; doing so ‘constitutes impermissible viewpoint discrimination.’”
Breyer’s majority opinion was joined by Chief Justice Roberts and Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett. They were also three concurring opinions. One by Justice Kavanaugh, a second by Justice Alito joined by Thomas and Gorsuch, and a third by Justice Gorsuch joined by Justice Thomas.
Justice Kavanaugh, concurring, made clear this case only got to the Supreme Court “because of a government official’s mistaken understanding of the Establishment Clause.” We should also add that many judges share the mistaken view, also. But as Kavanaugh writes, “Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class.”
Justice Alito’s concurrence agrees with the Court’s ultimate conclusion but disagrees with the majority’s analysis. And with good reason. Justice Alito rightly points out that some of the “tests” the majority uses to answer the question here, like “the extent to which the government has actively shaped or controlled expression,” can actually be used by bad actors to discriminate against those with whom it disagrees. But that, too, would be an impermissible violation of the First Amendment.
Justice Alito smartly advocates for a more precise and robust definition of government speech, which, after all, is the only organism restricted by the First Amendment. “Government speech,” he writes, “is thus the purposeful communication of a governmentally determined message by a person exercising a power to speak for a government.” Furthermore, after establishing that government speech is at issue, “the government must establish it did not rely on a means that abridges the speech of persons acting in a private capacity.” This is the type of clear definitional guidelines that will help judges around the country administer justice in a much fairer way. Let us hope Justice Alito’s test finds wide acceptance in the years to come.
Finally, Justice Gorsuch writes a concurring masterpiece on what is known as the Lemon test. This is an approach that Concerned Women for America has asked the Court to overturn on many occasions. As he wrote, “Lemon ignored the original meaning of the Establishment Clause, it disregarded mountains of precedent, and it substituted a serious constitutional inquiry with a guessing game.”
The historical discussion especially is worthwhile in Gorsuch’s concurrence; I commend it to you. Here is a taste (citations omitted):
As a close look at these hallmarks and our history reveals, “[n]o one at the time of the founding is recorded as arguing that the use of religious symbols in public contexts was a form of religious establishment.” For most of its existence, this country had an “unbroken history of official acknowledgment by all three branches of government of the role of religion in American life.” In fact and as we have seen, it appears that, until Lemon, this Court had never held the display of a religious symbol to constitute an establishment of religion. The simple truth is that no historically sensitive understanding of the Establishment Clause can be reconciled with a rule requiring governments to “roa[m] the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine.” Our Constitution was not designed to erase religion from American life; it was designed to ensure “respect and tolerance.”
It is a critical discussion that accentuates his clear thinking on religious liberty issues.
This is a great win that envisions even greater protections for religious freedom for decades to come—a great development for all Americans regardless of religious belief.