A man holds a flag, which he describes as the “Christian flag”. Proud Boy and Patriot Prayer’s right-wing supporters, Three Percent and other armed allies of the far right, demonstrated in Portland, Oregon’s Justice Center on August 22, 2020.
John Rudoff AP
The Supreme Court unanimously ruled Monday that the city of Boston violated the Constitution by refusing to wave an explicit Christian flag in front of City Hall.
The court ruled that because the city government allowed other citizens to use the flagpole to express various messages, the rejection of the cross flag violated the freedom of speech rights of the religious group that proposed it.
“The Boston flag-raising program does not express a government speech,” Judge Stephen Brier wrote in a court ruling that overturned a lower court ruling.
The dispute depends on whether the flags waving on the mayor’s office program express the government’s point of view, or whether the city has opened the flagpole for citizens to express themselves.
Since 2005, Boston has allowed dozens of flags to be flown on one of three flagpoles in front of City Hall, some of which express the views of private groups or causes. The city has not refused any requests – until 2017, when the director of a group called Camp Constitution asked to wave a flag in honor of “the contribution of the Christian community.”
The blue and white flag in a prominent place bears a solid red Christian cross. The city commissioner rejected the Christian flag, fearing it might run counter to the constitution’s ban on the government’s establishment of religion.
The Federal District Court and the Federal Court of Appeals sided with Boston, deciding that the flags waving from the town hall’s flagpole were a government speech.
However, the Supreme Court considered “the extent to which Boston actively controls these flag-raising and shapes the messages sent by the flags,” Breyer wrote.
“The answer doesn’t seem to be at all,” Breyer said. “And that’s the most important feature of this case.”
Breyer’s opinion came less than a week after the 83-year-old judge took part in his latest round of oral litigation before retiring this summer. Breyer, one of three liberals on the nine-seat bench, will be replaced by Judge Ketanji Brown Jackson, the first black woman to become a Supreme Court judge.
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