Hey, there! Log in / Register

Supreme Court says Boston was wrong to bar former West Roxbury man from flying a 'Christian' flag over City Hall Plaza

Shurtleff's flag

The Supreme Court ruled unanimously today that the city of Boston was wrong in refusing to let a man run a flag featuring a cross up one of the three flagpoles over City Hall Plaza - not because he necessarily has a First Amendment right to let his religion flag fly but because the city had a lame policy for deciding what could and couldn't wave over the plaza.

Boston says that all (or at least most) of the 50 unique flags it approved reflect particular city-endorsed values or causes. That may well be true of flying other nations' flags, or the Pride Flag raised annually to commemorate Boston Pride Week, but the connection to other flag-raising ceremonies, such as one held by a community bank, is more difficult to discern. Further, Boston told the public that it sought "to accommodate all applicants" who wished to hold events at Boston's "public forums," including on City Hall Plaza. ... The city's application form asked only for contact information and a brief description of the event, with proposed dates and times. The city employee who handled applications testified that he did not request to see flags before the events. Indeed, the city's practice was to approve flag raisings without exception—that is, until petitioners' request. At the time, Boston had no written policies or clear internal guidance about what flags groups could fly and what those flags would communicate. ... All told, Boston’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads the Court to classify the third-party flag raisings as private, not government, speech.

The ruling might be a victory for Hal Shurtleff, an ex-Bircher who now lives in New Hampshire, closer to the camp he runs to indoctrinate kids with his version of the Constitution, if the city continues to let third parties fly flags from one of the poles. The city could also decide to just bar everybody from the pole.

The city had argued that the pole represented "government speech," that governments, just like private parties, have a right to express themselves and that the pole was an example of that - and that letting a "Christian" flag fly from it would violate the establishment clause of the First Amendment. A federal judge and appeals court in Boston had repeatedly sided with the city, but Shurtleff, represented by the right-wing Liberty Counsel, appealed and the Supreme Court took the case.

In its ruling, the high court acknowledged governments have their own free-speech rights, but said Boston's lackadaisical approach to approval of flags on the pole, at least up until Shurtleff's initial request, meant the pole was not being used exclusively to tell Bostonians what their government thought about something. Replacing the Boston flag with a Canadiens flag after the Bruins lost a series? Yes, government speech, the court concluded. But then there were the 20 times a year when the city let private groups hoist flags to honor events on the plaza. That's not government speech, and if you're going to let one group raise a flag, then you have to let others as well:

Because the flag-raising program did not express government speech, Boston's refusal to let petitioners fly their flag violated the Free Speech Clause of the First Amendment. When the government does not speak for itself, it may not exclude private speech based on "religious viewpoint"; doing so “constitutes impermissible viewpoint discrimination." Good News Club v. Milford Central School>, 533 U. S. 98, 112.

Neighborhoods: 
Topics: 
AttachmentSize
PDF icon Complete ruling689.67 KB

Ad:
Like the job UHub is doing? Consider a contribution. Thanks!

Comments

Props to Breyer for getting a "City Hall Named World's Ugliest Building" dig into the opinion!

up
Voting closed 50

I love that building. But am grateful I don’t work in it. Too gloomy inside.

up
Voting closed 32

and I agree completely that the inside is a dank, ugly, dysfunctional mess.

up
Voting closed 27

Keanna Saxon described so perfectly.

up
Voting closed 8

It is said of Guy de Maupassant, who hated the Eiffel Tower, that he frequently ate lunch at the tower's restaurant, since it was the one place where he would be unable to see it spoiling the view.

Yet Boston City Hall is so bad that even the inside is no respite from it!

up
Voting closed 17

is the gross, drab brick plaza. Make it an actual public park with some nice greenspace and trees and it'd be a super interesting place that would also be somewhere people might want to spend time at.

up
Voting closed 27

The acoustics inside.

up
Voting closed 15

Told you so.

up
Voting closed 21

can you share with us, Anonymous Nostradamus!!!

up
Voting closed 47

Anonstradamus?

up
Voting closed 14

surely.

up
Voting closed 26

anything related to religion should not be displayed on or in government buildings/property in the United States. that includes chipping "god" from anything the government pays to maintain, and all religious references should be stripped from the various oaths of office.

i know it will never happen, but that is where this all should have started.

up
Voting closed 26

To get a 9-0 ruling to reverse, but the Court got it right here. I'm not even sure one could argue that the policy was lame here; rather, there had been essentially NO policy in the past.

up
Voting closed 50

.... in McCullen v. Coakley, 573 U.S. 464 (2014) which similarly unanimously bench-slapped the legal luminaries of Massachusetts on their total ignorance of First Amendment jurisprudence.

up
Voting closed 8

The "last time" though was Texas v Walker in 2015, when the Court ruled 5-4 against the First Amendment.

up
Voting closed 9

I saw this slide down the slippery slope coming. I certainly don't think this clown should be able to fly his flag at City Hall, but neither do I think that Boston City Hall should fly the flags of Haiti, Puerto Rico, Pride (and I say this as a gay man), local banks, car dealerships, restaurants, Satanists, ice cream lovers, pot smokers, or any others. It becomes impossible to take seriously. We are one nation under one national flag and one state under one state flag. The POW/MIA flag, is, of course, a special exception. I'm sorry, but I don't think every Tom, Dick, Harry and Mary should get to fly their own little flag at City Hall. Enough with all the little fiefdoms.

up
Voting closed 30

The POW/MIA flag, is, of course, a special exception.

The problem with special exceptions is that they tend to multiply pretty much on their own.

up
Voting closed 23

Alternatively have a secondary flag pole specifically for every Tom Dick and Harry that's bookable to the public and lets a new flag rotate in every week. Would love to see the Ice Cream Lovers flag, personally.

up
Voting closed 12

It could be like naming rights at the TD Garden, or whatever it's being called this week. :-) The City Hall flag situation is already basically that anyway.

up
Voting closed 6

The POW/MIA flag, is, of course, a special exception. I'm sorry, but I don't think every Tom, Dick, Harry and Mary should get to fly their own little flag at City Hall.

So what qualifies POW/MIA as a special exception but all the other flags are not?

I don't think the slope is any less slippery if that's the path you take to start down it.

up
Voting closed 16

It's a Congressionally recognized and by federal law REQUIRED flag on certain federal properties when the US flag is displayed.

https://www.congress.gov/bill/116th-congress/senate-bill/693

up
Voting closed 13

I had a vague idea there was more to this and didn’t have the time to do my own research.

up
Voting closed 16

… from a City Hall flagpole. Here’s hoping the policy becomes official government flags only.

And hoping for an adieu to invocations as well.

up
Voting closed 72

Let's hope we see a Satanic Temple flag flying there soon. At what point is my right not to see Christian symbology publicly displayed violated?

up
Voting closed 10

They never fly the Swiss or Greek flags or even worse, the Union Jack, which combines the crosses of three different saints! (Or, for that matter, any flag which might include the Union Jack, like the state flag of Hawaii or the city flag of Taunton.)

Oh, and the flag of India is off-limits because it contains a Buddhist symbol. Ditto for the flags of many majority-Muslim nations.

up
Voting closed 14

but i'm fairly certain Lee's point was that he would prefer no religious iconography of any kind on any government flag flown anywhere

up
Voting closed 24

Though I think it’s ironic that democratic nations with large numbers of atheists like Sweden sport crosses on their flags, at this point the cross on the Swedish flag is pretty much just a cross. An historical hangover.
This guy’s cross is a direct reference to Christianity and religion is something our government should not be using its power to endorse. I have always thought it weird that any flag other than the American flag or the Massachusetts state flag is allowed to be flown at City Hall.

up
Voting closed 13

Not every cross symbol is Christian though, is it? Churches didn’t patent or trademark lines intersecting at right angles. Governments can set up four way stops without endorsing any particular mode of godbelief.

up
Voting closed 9

I don’t see your point.

Perhaps we are speaking at “cross purposes”

up
Voting closed 13

Not every cross symbol is Christian though, is it? Churches didn’t patent or trademark lines intersecting at right angles. Governments can set up four way stops without endorsing any particular mode of godbelief.

up
Voting closed 6

You don't need to like the flag to see the city was going too far in denying that flag.

The simple fix is to just remove the flagpole. Much like the sermon at the start of the city council meetings, it serves no purpose except as a favor to a constituent. If a city councilor wants to hang a flag or listen to a prayer, they can do so in their office.

up
Voting closed 76

I'd love to know how many tax dollars both Walsh and Wu wasted on this lawsuit.

up
Voting closed 37

Not only did they waste the time and money, it also makes it even harder for all cities to enforce such policies in the future AND they've done a great job of giving that asshole a lot of publicity.

No one would remember if they had just risen the flag for a day and pledged to establish a more restrictive flag policy in the future.

up
Voting closed 39

"If liberals are so smart, why do they lose so Goddamn always?"

up
Voting closed 41

The liberals sided with the conservatives.

Breyer wrote the opinion.

up
Voting closed 29

The comment to which I directly replied cited this as a loss for Walsh and Wu.

up
Voting closed 23

bite me.

up
Voting closed 9

bite me.

up
Voting closed 10

bite me.

up
Voting closed 5

Jeez, you must be really desperate. Too bad the Phoenix went out of print long ago.

up
Voting closed 13

"astrology for men"

up
Voting closed 35

Libertarianism is so, so much dumber than astrology.

up
Voting closed 37

Libertarians are dumber than liberals. Liberals win way more than them.

up
Voting closed 12

But they still enjoy the satisfaction of knowing that they live their lives without inventing reasons to abuse others.

up
Voting closed 9

knowing that they live their lives without inventing reasons to abuse others.

...people got all sorts of delusions.

up
Voting closed 12

I don't think it will be harder for cities to enforce these policies, they just have to have one. The ruling basically said that if the city had just bothered to document the requirements they could have avoided this (and by extension if they draft it now they can prevent him from flying his flag now).

up
Voting closed 8

"The city could also decide to just bar everybody from the pole."

And how is a dancer supposed to make a living?

up
Voting closed 20

The reason for the 3 flagpoles:

  1. US National Flag: aka and Stripes
  2. State Flag of Commonwealth of Massachusetts : aka Blue Flag with the Seal of the Commonwealth of Massachusetts including the famous Indian, the sword in hand, and Latin phrase: “Ense petit placidam sub libertate quietem” [“By the sword we seek peace, but peace only under liberty"]
  3. Flag of the City of Boston: aka light Blue Flag with the Seal of the City Boston including the Latin expression: SICUT PATRIBUS, SIT DEUS NOBIS" [“God be with us as he was with our fathers”], and “BOSTONIA CONDITA AD 1630" ["Boston founded AD 1630"]

The use the 3rd pole is controlled by the City -- and thence the controversy

up
Voting closed 8

They're missing a pole: Pats, Sox, Bruins, Celtics.

up
Voting closed 13

*sigh* Politics and religion.

up
Voting closed 7

I encountered Hal on Nextdoor a couple years back. I forget what harebrained nonsense he posted, but it got everyone all riled up and you could tell that he loved being the troll. I have a feeling that some of that "dis-likeability" helped to push this as far as went. If he was a nice nun or something the city probably would have just flown the flag and moved on. But if you get someone who busts in and says, "Fly my damn Jesus flag!" the push back is only natural.

up
Voting closed 19

is that he's New Hampshire's problem until he dies leaving a booby trapped house that the feds seized for tax evasion or something.

up
Voting closed 15

Since when has Christianity needed an offical graven image?

This flag looks like something one might associate with French Knights on the ramparts of the Boston City Castle launching cattle.

up
Voting closed 18

We don’t need your flags, we already got one!

IMAGE( http://vignette.wikia.nocookie.net/montypython/images/0/07/Montypythonfrench.jpg/revision/latest?cb=20070904000009)

up
Voting closed 16

I feel like this is obligatory for every story about this case.

up
Voting closed 7

gonna get spicy now

up
Voting closed 7

The city government really dropped the ball on this.

up
Voting closed 11

Ah, the outcome 25% of registered voters wanted.

up
Voting closed 6

I still can't believe literally no one just was like "huh, a f*cked up Charlestown flag" and just moved on.

up
Voting closed 6