The Supreme Court issued Monday’s 9-0 decision by Justice Stephen Breyer. Justice Breyer will be retiring at the conclusion of his term. It is known as Shurtleff, et al. v. City of Boston, and others.The question of whether Boston City violated the First Amendment by refusing to fly the flag of an organized Christian group even though other flags were flown from outside sources was the subject of the ensuing debate.
According to the Supreme Court, Boston’s refusal to display a Christian flag from an outside group in front of the City Hall violated the First Amendment. This was despite other flags being displayed. This unanimous decision was the final one of its kind.
— SCOTUSblog (@SCOTUSblog) May 2, 2022
A little background: Three flagpoles stand in the plaza outside Boston’s City Hall. The American flag and the flag of the Commonwealth of Massachusetts grace two of the three flagpoles; the City’s flag usually flies from the third. In connection with these ceremonies, however, outside groups have been allowed to use the Plaza for ceremonies and fly flags from the third pole. This was made by the following:
From 2005 to 2017, Boston allowed the raising of approximately 50 flags in 284 ceremonies. Most of these flags were other countries’, but some were associated with groups or causes, such as the Pride Flag, a banner honoring emergency medical service workers, and others.
When Harold Shurtleff proposed to hoist a “Christian flag” for a ceremony celebrating the Christian community in 2017, the City’s Property Management Department commissioner denied the request to fly the flag, as he was “worried that flying a religious flag at City Hall could violate the Establishment Clause and found no past instance of the city’s having raised such a flag.” The ceremony could proceed but without the flag.
The Court declared that the decision was not constitutional.
1) Boston’s flag-raising program does not express government speech.
a) The Free Speech Clause does not prevent the government from declining to express a view;
b) Some of the evidence before the Court favored the City; some favored Shurtleff.
2) 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.
Justices Sotomayor, Kagan, Kavanaugh, and Barrett joined in Justice Breyer’s opinion. Justice Kavanaugh also filed an concurring opinion. Justice Alito also filed concurring opinions, which Justice Thomas and Gorsuch both joined. Justice Gorsuch, in turn, filed a concurring view to which Justice Thomas also joined.
Here is the complete decision.