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Explainer: The Boston flag case

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January 18, 2022

Today, the Supreme Court of the United States heard oral arguments in Shurtleff v. Boston, a key First Amendment case before the court this term. Here’s what you need to know about this case: 

What is this case about?

The City of Boston manages three flagpoles in front of its City Hall. Typically, those flagpoles fly the American flag and the POW/MIA flag on one flagpole, the Commonwealth of Massachusetts flag on the second, and Boston’s own local flag on the third. The City occasionally, upon request and approval, will fly another flag for a brief period of time rather than Boston’s flag, typically in conjunction with an event happening at City Hall.

In 2017, Harold Shurtleff, through his organization, Camp Constitution, petitioned to host an event at Boston City Hall, raise a Christian flag, and have members of the clergy speak about the religious history of Boston, the Commonwealth of Massachusetts, and the Constitution. 

The City denied Camp Constitution’s request to fly the Christian flag. According to the petition, “For the twelve years preceding Camp Constitution’s request, from June 2005 through June 2017, the City approved 284 flag raising events, with no record of a denial.” Gregory T. Rooney, Commissioner of Boston’s Property Management Department, who reviews these requests, ultimately decided to deny Camp Constitution’s request because “we didn’t have a past practice of allowing religious flags, and we weren’t going to allow this flag raising.”

Following this denial, Camp Constitution sued the City of Boston claiming a violation of the organization’s First Amendment rights. Both the district court and U.S. Court of Appeals for the First Circuit have ruled in favor of the City.

Why is this case important?

This case has the potential to further limit the scope of the Establishment Clause and may have implications for religious speech at other limited public forums such as schools, city halls, and public libraries.

As noted by Becket Law, Boston’s city officials “have an outdated understanding of the Establishment Clause [that] often ban[s] religious elements from the public square simply because they are religious.” They continue, 

“This error isn’t limited to Boston. For years, government officials (with approval from lower courts) have been censoring religious expression from the public square in fear of violating the Constitution. Many mistakenly think that exclusion of religion is the safest option. This mistake goes beyond a flagpole—similar reasoning has been used to prohibit religious groups from advertising on trains and buses, exclude religious schools from generally available funding programs, and even deny FEMA aid to churches and synagogues damaged by hurricanes.”

This case presents the Supreme Court with an important opportunity to affirm the First Amendment rights of religious organizations and clarify understanding of the Establishment Clause.

How has the ERLC been involved?

The ERLC joined an amicus brief asking the Supreme Court to rule in favor of Camp Constitution. The brief argues that the City of Boston is violating the Free Exercise Clause and Establishment Clause and is wrongly discriminating against the speech of a religious organization. The Supreme Court rightly agreed to hear oral arguments in this case and we are hopeful that the court will rule against the exclusion of religious expression in public forums. 

The ERLC engages our culture with the gospel of Jesus Christ in the public square to protect religious liberty and promote human flourishing. One of the ways we do this is by advocating for these things before the Supreme Court. While we’ve worked diligently and pray earnestly that the court will affirm religious liberty in this case, we ultimately place our trust in God to fulfill his plans and use the work of the ERLC along the way.