November 2021 Church & State Magazine - November 2021

Warning Flag! A Raft Of New Cases At The Supreme Court May Result In A Lowered Church-State Wall

  Liz Hayes

The U.S. Supreme Court in late September added another religious freedom case to a docket already packed with cases that could further chip away at church-state separation.

A few days before the court’s new term began on Oct. 4, the justices announced several new cases they’ll hear in the coming months, including Shurtleff v. City of Boston – a case that will determine whether Boston must fly a Christian flag at city hall.

Rachel Laser, president and CEO of Americans United, said the outcome of the case should be obvious – though it is far from certain with the Supreme Court’s current makeup that includes a majority of justices who have demonstrated hostility toward separation of religion and government.

“The separation of church and state is the constitutional principle that guarantees everyone’s right to religious freedom and to be treated equally under the law. To protect this core American principle and to respect the religious diversity that defines our country, the Supreme Court should not force the City of Boston to fly a Christian flag at city hall,” Laser said in a Sept. 30 statement that was quoted in USA Today and other media outlets.

“It was bad enough when the Court ignored church-state separation by allowing a towering Christian cross to remain on public land in Bla­densburg, Maryland,” Laser added, referring to a troubling 2019 court decision. “But to force any American city to erect new religious displays would not only undermine the foundational principle of church-state separation, it would play right into the hands of Christian nationalists who want the government to force everyone to live by their beliefs – threatening everyone’s religious freedom and widening inequality in our communities and country.”

This latest case joins at least three others the court will hear in the coming months – all cases that have worrisome implications for religious freedom:

· On Nov. 1, the court will consider whether the state of Texas’ refusal to allow a pastor to pray for and lay hands on a man while he’s being executed violates a statute that protects the religious freedom of incarcerated individuals.

· On Dec. 1, in a case that threatens to overturn Roe v. Wade, the justices will debate whether Mississippi’s new law that bans abortions after 15 weeks is unconstitutional. Americans United filed a friend-of-the-court brief in the case arguing that the court’s nearly 50-year-old precedent that bans on pre-viability abortions are unconstitutional is consistent with the principles that laws should not be based on religious doctrine and that government should not take sides in religious controversies.

· On Dec. 8, the court will consider its second case in as many years concerning state aid to religious schools when it hears arguments that Maine taxpayers should be forced to pay for private religious education.

The justices have not yet filled out their calendar for the 2021-22 term, which runs through next June. They could still accept one or more cases that touch on religious freedom issues such as LGBTQ discrimination in the provision of health care and wedding services; religious exemptions from reproductive health care policies; civil rights protections for people who work for religious organizations; and school-sponsored prayer in public school athletics.

Arguments have not yet been scheduled in the Shurtleff case but will likely occur early in 2022. The case stems from Boston’s practice of occasionally granting requests from people and organizations that want to temporarily display flags on a city hall flagpole. Flags that have been permitted include those recognizing cultural or ethnic celebrations and honoring foreign dignitaries visiting the city.

The city’s intent with this practice is creating “an environment in the City where everyone feels included, and is treated with respect,” according to the court documents. “We also want to raise awareness in Greater Boston and beyond about the many countries and cultures around the world. Our goal is to foster diversity and build and strengthen connections among Boston’s many communities.”

christian flag


The city had never been asked to display a religious flag until Camp Constitution, a Christian nationalist organization, wanted to fly the Christian flag on Constitution Day in 2017. The flag display was to coincide with a Camp Constitution event outside city hall with several pastors “to commemorate the historical civic and social contributions of the Christian community to the City of Boston.”

After review, Boston officials denied Camp Constitution’s request.

“The City of Boston maintains a policy and practice of respectfully refraining from flying non-secular flags on the City Hall flagpoles,” the officials noted. “This policy and practice is consistent with well-established First Amendment jurisprudence prohibiting a local government from ‘respecting an establishment of religion.’ This policy and practice is also consistent with the City’s legal authority to choose how a limited government resource, like the City Hall flagpoles, is used.”

Boston offered to reconsider if Camp Constitution submitted a new request to display a non-religious flag as part of the Constitution Day event. Instead, Camp Constitution and its director, Hal Shurtleff, opted to sue the city with the assistance of the Religious Right law firm Liberty Counsel.

One might think organizers of an event recognizing the signing of the Constitution in 1787 would opt for a more quintessentially, historically relevant display – such as the flag adopted by the Continental Congress in 1777 that is the predecessor of today’s Old Glory, only with a circle of 13 stars representing the original 13 colonies instead of today’s array of 50 stars for 50 states. The Christian flag Camp Constitution sought to fly – a white flag with a red cross on a blue field – didn’t exist until more than a century after the nation’s founding. It was designed by a pair of religious leaders in 1907, according to a report by Christianity Today.

However, Camp Constitution makes clear that elevating Christian nationalism – the myth that America was founded as and must remain an officially Christian country – is its goal. The organization proclaims on its website: “The mission of Camp Constitution is to enhance 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.”

Camp Constitution’s website also notes it is accepting donations from people interested in helping the camp expand beyond its home base in New Hampshire so that “the next generation [is] reached, equipped and strengthened with the knowledge of how Am­erica was founded as a Christian nation.”

Federal courts have repeatedly ruled against Camp Constitution’s quest to force Boston to fly the Christian flag.

In 2018, U.S. District Court Judge Denise J. Casper found that the city’s policy is “reasonable based on the City’s interest in avoiding the appearance of endorsing a particular religion and a consequential violation of the [Constitution].” In her ruling, Casper noted Boston had allowed Camp Constitution to hold events on city property and even to display the Christian flag – just not on the city’s flagpole.

Dissatisfied, the camp appealed the decision to the 1st U.S. Circuit Court of Appeals, where Americans United and more than a dozen allied groups filed a friend-of-the-court brief supporting Boston.

“Because religious symbols are powerful expressions of ideas, for many people it would be profoundly affirming to see a flag promoting their own religion flying outside city hall,” the brief explained. “But to those who do not subscribe to the beliefs represented by the flag, the display instead may send a stigmatizing message of exclusion from the political community. And even for adherents to the favored religion, the government’s use, for its own purposes, of their religious symbol may be demeaning to both their faith and the revered symbol.”

In a written opinion this past January that referenced AU’s brief, the 1st U.S. Circuit Court of Appeals also ruled against Camp Constitution, observing, “Although the plaintiffs might perhaps make the case that a lone Christian flag, nowhere near City Hall, would be seen as devoid of any connection to a government entity, a City Hall display that places such a flag next to the flag of the United States and the flag of the [C]ommonwealth of Massachusetts communicates a far different message.

“The sky-high City Hall display of three flags flying in close proximity communicates the symbolic unity of the three flags,” the court added. “It therefore strains credulity to believe that an observer would partition such a coordinated three-flag display … into a series of separate yet simultaneous messages (two that the government endorses and another as to which the government disclaims any relation).”

The camp and its attorneys at Liberty Counsel have asked the Supreme Court to reverse the lower court’s decision. The camp’s attorneys claim Boston has created a public forum and that it is religious discrimination and censorship of free speech to decline a religious display.

At Church & State’s press time, Americans United attorneys were pre­paring to file a friend-of-the-court brief with the Supreme Court, urging the justices to protect church-state separation by affirming Bos­ton’s right to decline to display a sectarian flag.                      

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