The City of Boston has three flagpoles in front of City Hall. The first flies the American flag, the second flies the Massachusetts flag, and the third nearly always flies the City flag. Sometimes, Boston flies other flags in place of the City flag, such as flags of foreign nations during a diplomatic visit, or the Pride flag in conjunction with the City’s Pride celebration. When Boston flies these flags, it promotes the messages or ideas of the City government itself. So when, in 2017, Boston received an application to fly the Christian flag from its flagpole, it declined to do so, citing concerns that flying a religious flag would constitute the City’s endorsement of Christianity and favoritism toward one faith.
Harold Shurtleff, who had requested that the Christian flag be flown, then brought suit against Boston, arguing that the flagpoles are a “public forum,” and that as a result, Boston cannot refuse to fly the Christian flag. We twice filed amicus briefs in support of Boston before the U.S. Court of Appeals for the First Circuit, and the First Circuit twice upheld Boston’s refusal to fly the Christian flag.
The Supreme Court then granted review. Americans United and cocounsel from Mayer Brown LLP, the Yale Law School Supreme Court Clinic, and McDermott Will & Emery LLP, filed an amicus brief at the Supreme Court on behalf of a wide array of religious organizations, including, importantly, the National Council of Churches and Christian denominations that use the flag. The brief explained that far from being a public forum, the flagpoles represent government speech—and that Boston may therefore use them to speak, or stay silent, as it wishes, as long as it does not violate the Establishment Clause. And when it comes to government speech, the Free Exercise Clause does not require that a religious flag be flown; rather, the Establishment Clause forbids government to endorse any faith. It is simply unavoidable that seeing a flag with the Latin cross, the most recognizable religious symbol in our society, flown at City Hall would make adherents of other faiths and nonbelievers feel alienated and excluded.
On May 2, 2022, the Supreme Court ruled that Boston had violated Shurtleff’s free-speech rights by declining to display the Christian flag. The Court concluded that flags of private organizations remain private speech even when they are displayed on the city’s flagpole, and that Boston had made the flagpole available as a limited public forum for the display of private flags. Therefore, in the Court’s view, it was unconstitutional for Boston to refuse to display a private group’s flag because of its religious nature.