A Public Flagpole, a Christian Flag and the First Amendment

WASHINGTON — There are 3 flagpoles successful beforehand of Boston’s City Hall. One flies the American flag, and the 2nd that of Massachusetts. What appears connected the 3rd is astatine contented successful a lawsuit the Supreme Court volition perceive successful January.

That flagpole, which ordinarily flies the emblem of Boston, is occasionally made disposable to groups seeking to observe their backgrounds oregon to beforehand causes similar cheery pride. In a 12-year period, the metropolis approved 284 requests for the 3rd flag.

It rejected lone one, from Camp Constitution, which says it seeks “to heighten knowing of our Judeo-Christian motivation heritage.” The group’s exertion said it sought to rise a “Christian flag” for 1 hr astatine an lawsuit that would see “short speeches by immoderate section clergy focusing connected Boston’s history.” The emblem bore the Latin cross.

The metropolis rejected the request, saying that flying the emblem would magnitude to authorities endorsement of religion. The radical sued, arguing that the city’s determination violated its close to escaped speech.

A unanimous three-judge sheet of the United States Court of Appeals for the First Circuit, successful Boston, ruled for the city, mostly connected the crushed that the authorities is entitled to take the messages it endorses.

“The metropolis controls which third-party flags are flown from the 3rd flagpole,” Judge Bruce M. Selya wrote for the panel, adding that “all 284 flags antecedently flown were flags of countries, civic organizations oregon secular causes.”

The Supreme Court, which has grown progressively delicate toward what its blimpish bulk sees arsenic authorities hostility to religion, agreed successful October to perceive Camp Constitution’s appeal.

Last week, the radical gained an important ally. The American Civil Liberties Union, which has often sued to barroom spiritual displays connected authorities property, filed a little supporting Camp Constitution, saying Boston had violated its escaped code rights.

“We person agelong expressed interest astir authorities endorsement of religion,” said David Cole, the A.C.L.U.’s nationalist ineligible director. “But erstwhile the authorities opens a forum to backstage speakers generally, arsenic Boston did here, it can’t crook distant a talker simply due to the fact that it is religious.”

“We don’t hold with Camp Constitution’s views,” helium added, “but we support its close to explicit them.”

The Biden medication besides filed a brief past week urging the Supreme Court to reverse the First Circuit’s determination successful the case, Shurtleff v. City of Boston, No. 20-1800. “The metropolis cannot mostly unfastened its flagpole to flags from backstage civic and societal groups portion excluding different akin groups with spiritual views,” the little said.

In erstwhile cases, the Supreme Court has sometimes struggled to separate the government’s code from backstage code successful a nationalist forum. One acrophobic the Confederate conflict flag.

In 2015, successful Walker v. Sons of Confederate Veterans, the Supreme Court ruled that Texas could garbage to let specialty licence plates bearing the Confederate emblem due to the fact that the plates were authorities code and truthful immune from First Amendment scrutiny. The ballot was 5 to 4.

Texas had permitted hundreds of specialty plates bearing each sorts of messages, including ones for assemblage alumni, sports fans, businesses and work organizations. Others sent messages similar “Choose Life,” “God Bless Texas” and “Fight Terrorism.”

Understand the Supreme Court’s Momentous Term

All were authorities speech, Justice Stephen G. Breyer wrote for the majority.

“As a wide matter,” helium wrote, “when the authorities speaks, it is entitled to beforehand a program, to espouse a argumentation oregon to instrumentality a position.” Were this not so, helium said, the authorities would beryllium powerless to promote vaccinations oregon beforehand recycling.

In dissent, Justice Samuel A. Alito Jr. questioned the conception that licence plates saying “Rather Be Golfing” oregon supporting the University of Oklahoma conveyed a authorities message. The archetypal cannot plausibly correspond authorities policy, helium wrote; the second, successful Texas astatine least, bordered connected treason during assemblage shot season.

In the Texas case, arsenic successful the 1 from Boston, the A.C.L.U. weighed successful connected the broadside of escaped speech.

“The Confederate conflict emblem was the banner for those who supported slavery and sought to interruption our federation apart,” the group’s little said. “It aboriginal served arsenic a rallying motion for those seeking to support radical separation successful each facets of life, from the voting booth to the wedding chapel.”

But authorities censorship, the A.C.L.U. said, was not the answer.

“However tenable this distaste for a awesome of racism,” the little said, “the Constitution does not licence the authorities to discriminate against messages successful a forum it has created for backstage speech.”

More recently, successful Matal v. Tam successful 2017, the Supreme Court unanimously ruled that the authorities could not garbage to registry trademarks for perchance violative names.

“It is far-fetched to suggest that the contented of a registered people is authorities speech,” Justice Alito wrote for the court. “If the national registration of a trademark makes the people authorities speech, the national authorities is babbling prodigiously and incoherently. It is saying galore unseemly things. It is expressing contradictory views.”

If the emblem successful the Boston lawsuit is similar a licence plate, Camp Constitution should lose. If it is similar a trademark, it should win. But it cannot hurt, earlier the existent Supreme Court, that the connection it seeks to convey is religious.