By Amy Howe
January 18, 2022
at 5:08 p.m.
Douglas Hallward-Driemeier advocates for the city of Boston. (Art Link)
The Supreme Court heard oral argument on Tuesday in a free speech case stemming from Boston’s practice of allowing outside groups to fly their flags from one of three flagpoles in front of City Hall. A group that was denied permission to fly a ‘Christian flag’ argued in the Supreme Court that it would be ‘dangerous’ to allow the lower court’s decision upholding the city’s policy to stand , while the city stressed that its decision to allow other groups to use the flagpole is tantamount to the city’s word, allowing it to choose which flags it wants to fly.
After nearly 90 minutes of oral argument, some judges appeared troubled by the possible implications of a broad ruling for the group, suggesting it could require the city to fly offensive flags like a swastika. But at the same time, the judges seemed even more skeptical of the city’s decision to deny the group’s request to fly its flag.
Attorney Mathew Staver argued on behalf of Harold Shurtleff, the founder of Camp Constitution, who asked to fly the group’s flag, bearing a cross, on the third mast in connection with an event he wanted to hold on the place in front of the town hall. . Two of the masts are occupied by the American flag (with the POW/MIA flag) and the flag of Massachusetts; the city of Boston flies its flag on the third pole but sometimes grants requests to exchange another flag for its own. During a 12-year period in which the city approved 284 requests to fly other groups’ flags on the third mast, Staver told judges the city hadn’t turned down any requests – until that the word “Christian” in Camp Constitution’s request torpedoes his request. .
Several judges pressed Staver on what a ruling might mean for the group. Chief Justice John Roberts asked if the city could deny requests to fly flags supporting “discrimination or bias.” When Staver responded that, if the masts were otherwise open to the public, such a policy would be unconstitutional discrimination based on point of view, Roberts pushed back. “Well, they can’t have an official opinion,” Roberts asked, “against discrimination or against prejudice?”
Judge Elena Kagan had a similar question. If a city wanted to use its flagpoles for a community building program but wanted to try to put limits on it, she asked, should the city allow someone to raise a flag with a swastika on it? When Staver again replied that the answer was yes, Kagan suggested that therefore cities would not be able to implement such programs “because no city will want to fly a swastika or a flag of KKK or something like that.”
Staver countered that a city could “open up a forum but limit it to certain types of topics or speakers, sure.” Boston, he said, simply chose not to.
Sopan Joshi, the assistant United States Solicitor General who argued on behalf of the United States on Shurtleff’s behalf, agreed. He pointed out that a city like Boston could maintain a flag-raising program while excluding offensive flags like KKK flags and swastikas and imposing other restrictions, as long as the restrictions are tied to the purpose. from the program.
Kagan wasn’t necessarily happy, telling Joshi that such a program would be “much more limited” than the one she had in mind, which would allow members from all parts of the community to fly flags representing things that are important to them, but without forcing the city to accept offensive messages. “Essentially,” she told Joshi, “you’re saying they can’t do that.”
Arguing for the City of Boston, attorney Douglas Hallward-Driemeier told judges that private groups “are free to wave their flags in City Hall Square or even raise a temporary flagpole there, but they cannot commandeer the town mast to send a message the town does not approve.
Hallward-Driemeier immediately faced questions about the policy of the city itself, with Judge Samuel Alito suggesting that the city had only “reverse-engineered” its flag approval policy after rejecting the Shurtleff asks. When the city initially denied Shurtleff’s request, Alito pointed out, the city’s only criteria was whether the flag was “non-secular.” And if you open the floor to everyone but prohibit religious speech, Alito continued, does that violate the Constitution?
Hallward-Driemeier pointed out that the city’s policy against allowing religious flags stems from a desire to “remain silent, neutral toward religion.” The city, he explained, will not support religion, but it will not criticize it either. “And this is in line with the principles of the ‘Establishment Clause’ of the Constitution, which prohibits the government from endorsing religion and favoring one religion over another.
But Judge Brett Kavanaugh suggested that the city’s policy was based on “an erroneous view of the Establishment Clause”. Opening a public space for the use of all groups, religious and secular, does not violate the Establishment Clause, he observed. “And it looks like we’ve had case after case after case that has tried to correct that false impression of the Establishment Clause, and that seems to me to be the root cause here.”
Kagan chimed in a few minutes later, asking Hallward-Driemeier (as she had asked Staver earlier) why Shurtleff and the city hadn’t settled their dispute when, she said, the case arose due to of a city official’s mistaken belief that the Establishment Clause prohibits the city from allowing Shurtleff to fly its flag.
Judge Neil Gorsuch also returned to the question of the establishment clause. He told Hallward-Driemeier that while the city official wrongly denied Shurtleff’s request to fly the Camp Constitution flag “because he believed the Establishment Clause required him to do”, and “that was the basis on which the city’s bid decision was made, what remains to be decided? “Why”, Gorsuch reiterated, “doesn’t this resolve this matter? “
A decision in the case is expected by the summer.
This article has been originally published at Howe on the Court.