The U.S. Supreme Court heard arguments on Jan. 18 about whether or not the city of Boston can discriminate against a flag bearing a Latin cross after it had extended the opportunity to fly flags representing Boston Pride (an LGBTQ group) and the National Juneteenth Observance Foundation at city hall.
There are three flagpoles in front of Boston city hall, one of the nation’s oldest and most historically significant cities. The first usually flies the American and the POW/MIA flags, and the second flies the Massachusetts state flag. The third usually contains the city of Boston’s flag, but has also been changed out as well for significant occasions as requested by the public on a first-come, first-served basis.
Some of the groups and events that have been represented by that third flagpole includes communist countries like China and Cuba, the pro-LGBTQ group Boston Pride and the National Juneteenth Observance Foundation, which commemorates when “federal troops arrived in Galveston, Texas, in 1965 to take control of the state and ensured that all enslaved people be freed.”
But when asked to fly a flag representing the nation’s Christian foundation, the city denied the request.
That drove Hal Shurtleff to file a lawsuit with the help of Liberty Counsel. The case, Shurtleff v. City of Boston, argues that the city violated Shurtleff’s “First Amendment (rights) by censoring a private flag in a public forum merely because the application form referred to the flag as a ‘Christian flag.’”
Shurtleff wanted the opportunity to fly “Camp Constitution’s flag during its Constitution Day event” to highlight the faith of our nation’s forefathers. Camp Constitution is an organization dedicated to enhancing the “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, which together gave our nation an unprecedented history of growth and prosperity, making us the envy of the world.”
The city of Boston disagreed, arguing that it was “permitted to censor the flag because it controlled the flagpoles and it was government, not private speech.”
Among the supporters of the case is the progressive law group the American Civil Liberties Union (ACLU), which wrote an amicus brief in support of Shurtleff’s case.
In an opinion piece for The Washington Post, David Cole of the ACLU wrote, “We argue that no reasonable observer would understand flying Camp Constitution’s flag—for just one hour on a single day—to be the government’s speech. Like the 284 flags flown before it, this group’s flag would be seen as just that—the group’s flag. And as such, the city can’t turn it down because the flag is religious.”
The argument in front of the Supreme Court seemed lively, with justices from both sides asking insightful questions.
Justice Clarence Thomas, who rarely weighs in during oral arguments, quickly fired off a question for the city of Boston’s lawyer: “You mentioned diversity several times, and what I don’t understand is your definition of diversity because it would seem to me that Christians in Boston would be part of that diversity calculus.”
A decision is expected sometime later this year.
