In Boston, a gay pride flag could be flown on the flagpole of the city hall, but the flag of a Christian group, with a simple cross and no word, did not have the same permission. In the most recent decision in defense of the participation of religion in society, the United States Supreme Court, in a unanimous vote in the Shurtleff v Boston case , determined that the city of Boston had an obligation to allow the Christian flag to be flown. Thus, the Court continues – and not for the first time unanimously – its defense of religious freedom, a defense that has lasted decades.
In front of Boston City Hall there are three very tall poles, of 27 meters, two of which are occupied by the flags of the United States and the state of Massachusetts. Since at least 1995, the city has allowed private groups to hold ceremonies using the third pole, since the city hall is considered a “public forum” . Between 1995 and 2017, Boston allowed a total of 284 of these ceremonies and never denied the opportunity to use the courtyard to any group.
In 2017, the city received a petition from the educational and philanthropic organization Camp Constitution, which aims to “increase understanding of the country’s Judeo-Christian heritage ”. Seemingly ecumenical, the organization intended to “spread the views of local clergy.” She intended to hoist a simple flag on the pole “displaying a red cross on a blue field against a white background.” Contrary to what happened with other organizations, the petition for the use of the public forum was denied.
Arguing that it had been discriminated against because of the religious content of the speeches scheduled for After the event, Camp Constitution filed a lawsuit citing the First Amendment to the US Constitution. The organization maintained that, by identifying and defining the mast as a “forum” open to the “public (…) with hundreds of approvals and no rejections”, that is, without ever controlling the speech of other demonstrations by 12 years ago, the city of Boston was using its power to suppress free speech. The organization lost the case in the federal district and in the appeals courts.
The City of Boston has incredibly counter-argued that its “public forum” – supposedly open to speeches of private organizations – it was actually a government forum, that the city controlled speech on government properties and that “the city can therefore choose the message, including the absence of religious themes”. As speech on government property would belong to the government, the city hall could not allow a religious speech without creating an unconstitutional link with religion, which would violate the principle of secularity of the State.
In his vote on the unanimous decision, Judge Stephen Breyer cited two precedents, using a third as a basis. In the Pleasant Grove v Summum case (2009), a religious organization asked a city in the state of Utah for permission to erect a permanent monument to the Seven Aphorisms. from Summum in a city park that already had a monument displaying the Ten Commandments. The petitioners argued that the denial of the request was clear discrimination against the other argument. In unanimously denying the case, the Supreme Court ruled that, by controlling the construction of monuments in the park, the city was exercising the “right to governmental expression”, not the right to expression in a forum open to the public. Therefore, the city had not denied the religious organization’s right to freedom of private expression, guaranteed by the First Amendment. Judge Samuel Alito drafted the winning vote. And Judge Breyer wrote a counterpoint.
Similarly, in the Walker v Tex case. Confederate Veterans (2009), the Supreme Court, by a score of 5 votes to 4, upheld the Texas Department of Motor Vehicles [uma espécie de Detran] decision to reject the request by the Sons of Confederate Veterans organization to wear a special plaque displaying the Confederate flag. Arguing in the close vote, Judge Breyer said that the signs and the messages they contained were government platforms with government goals and that the state of Texas could approve or disapprove of messages displayed on that platform.
On the other hand, in the case of Matal v Tam (2017), the Supreme Court unanimously upheld the right to freedom of expression in the constitutional wording of federal trademark law. Tam was the singer of a band called The Slants [termo usado para ofender orientais] and the band wanted to register that name. After being rejected by the US Patent and Trademark Office as an offensive term against Asians, something prohibited under federal trademark law, the band filed a lawsuit. Judge Alito argued that the department only registered and handled the legal details of the marks, without having the authority to assess the content and offensiveness of each of the marks. To do so would be to “discriminate the opinion of others”. The speech contained in a brand is not about the government; it’s a private speech. The department records, owns and protects the speech of private entities. If the federal government could control the words of a trademark, Judge Alito warned, it could control all the words of anyone subject to copyright. Judge Breyer, of course, adhered to the unanimous opinion.
In his short and simple opinion on the Shurtleff case, Judge Breyer emphasized the unquestionable fact that gave rise to the case and the uncompromising decisions of the City of Boston regarding its masts. Avoiding broad constitutional interpretations, he said the Court’s decision was based on a “holistic” rather than a “mechanical” analysis, which should be “motivated by the context of the case rather than the application of rigid rules” regarding balance and difference between private and governmental discourse. The “most evident character” of the case was “the extent to which the City of Boston actively controlled flag-raising, manipulating the messages contained therein. The answer, it seems, is that Boston didn’t.”
Thus, we have nine US Supreme Court justices recognizing day-to-day justice and basing the decision on undue discrimination of a religious group. Boston has adopted a policy of total openness, Judge Breyer told the others. Judge Brett Kavanaugh cast a partial vote. Judges Neil Gorsuch Clarence Thomas joined Alito in agreeing with the analysis but delving deeper into constitutional principles.
As for the precedents involving the attempt to specifically suppress the religious speech, Judge Breyer cited and relied on the Good News Club v Milford case (2001), a 6-3 decision in the which Judge Thomas was the rapporteur. In this case, the Supreme Court ruled that a public school discriminated against a Christian organization by denying it the opportunity to meet after school hours, while the school allowed other groups to meet. It was a violation of the First Amendment.
Following the same principle, Justice Breyer also mentioned the Supreme Court decision (5 votes to 4) in the Rosenberger v. of Virginia (1995). In this case, the Supreme Court ruled that the University of Virginia was required to subsidize a student publication of a religious nature in the same way that it subsidized other publications. Justice Anthony Kennedy, writing the winning vote, argued that the principle of secularity contained in the First Amendment required the university to be neutral on religious matters, while the Freedom of Speech clause required that the university “not tend or be hostile to any religion” ”. Justice Breyer disagreed.
But the fact that a unanimous Supreme Court decision involving religion was based on the obvious to all fairness of the “context” is something that emphasizes and highlights the injustice and rhetorical malice of a city in defending its right to be unfair. After all, the policy was one of tolerance until a religious organization asked for equal treatment. Overall, the case fits perfectly with the other Court precedents regarding “governmental” forums in relation to forums open to the public.
In addition, the unanimous decision in the Shurtleff v. Boston case is similar to other recent court decisions rejecting attempts by city and state governments to restrict religious freedom. In the famous “confectioner’s decision” of 2018, the Supreme Court, by 7 votes to 2, ruled that the state of Colorado could not compel a Christian confectioner to decorate a cake for a gay wedding. Likewise, in the unanimous decision in the Fulton case of 2017, the Court prevented the City of Philadelphia from denying Catholic Social Services the opportunity to participate in the adoption program of city because he refused to place the children in gay homes. But even more important than these three cases is the Court’s unanimous decision in the Hosanna-Tabor Evangelical Lutheran Church and School v EEOC case (2009). The action against the federal government was motivated by the appointment of a pastor. Note that here
a church was the plaintiff against the government.
So today freedom religion is being defended by both conservative and progressive judges. This hardly happens with other themes. It would be good if all executive bodies were aware of this.
Thomas Ascik is a lawyer and contributor to the Imaginative Conservative.