A group called Camp Constitution had been denied their request to fly a flag over City Hall for one hour, while Boston had permitted other groups to fly their flags.
The Supreme Court ruled unanimously on Monday that the city of Boston violated the First Amendment when it refused to allow a civic group to fly a flag with a Christian cross over City Hall.
The group, Camp Constitution, runs a summer camp and features speakers on the U.S. Constitution with a view to promoting the “understanding of our Judeo-Christian moral heritage.”
In 2017 the group was denied its request to fly their flag over City Hall on the grounds that allowing the flag to fly would appear to be an endorsement of a particular religion.
The request to fly the flag was for a one-hour period during an event held by Camp Constitution on September 17 in observance of Constitution Day.
The group contended that their First Amendment right to free speech had been violated, and that they had been unfairly discriminated against since other groups had been allowed to fly their flags.
According to the decision from the 1st Circuit Court of Appeals, over a 12-year period, the City of Boston had permitted other groups to fly their flags at City Hall on at least 284 occasions. Those flags included the Turkish flag (which depicts the Islamic star and crescent) and the Portuguese flag (which uses religious imagery). Other flags included a gay pride rainbow flag, a pink and blue transgender flag, and flags from foreign countries including Albania, Brazil, Ethiopia, Italy, Panama, Peru, Portugal, Puerto Rico, and Mexico, China and Cuba.
All nine justices of the Supreme Court ruled against the city of Boston. Two lower courts had sided with the city before the case reached the high court.
In its ruling the Court argued that the city’s flag-raising program falls under the category of private speech rather than government speech. The city’s lack of involvement in the selection of any of the flags flown over city property was presented as evidence of the private nature of the exercise.
Justice Stephen Breyer, wrote for the court, “We conclude that, on balance, Boston did not make the raising and flying of private groups’ flags a form of government speech. That means, in turn, that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint ‘abridg[ed]’ their ‘freedom of speech.’”
In his concurring opinion, Justice Brett Kavanaugh defended the right to religious speech under the First Amendment.
“Under the Constitution, a government may not treat religious persons, religious organizations or religious speech as second-class,” Kavanaugh wrote.