"This case represents a major win for religious freedom." - Matt Clark, President of the Alabama Center for Law and Liberty.
In a historic move, the U.S. Supreme Court ruled Monday that the city of Boston violated the free speech rights of a conservative activist when it refused his request to fly a Christian flag on a flagpole outside City Hall.
The decision came unanimously.
President of the Alabama Center for Law and Liberty Matt Clark said the decision is a win for all free speech.
"Across the nation, it has been more common over the past 15 years to use the Free Speech Clause to get wins for religious freedom because that's kind of been one thing that both conservatives and I would say old school liberals agree on, is that free speech matters,” Clark said. “Even if you don't like what somebody is trying to say, they still have the right to say it."
Justice Stephen Breyer wrote for the court that the city discriminated against the activist, Harold Shurtleff, because of his “religious viewpoint,” even though it had routinely approved applications for the use of one of the three flagpoles outside City Hall that fly the U.S., Massachusetts and Boston flags.
Occasionally, the city takes down its own pennant and temporarily hoists another flag.
Shurtleff and his Camp Constitution wanted to fly a white banner with a red cross on a blue background in the upper left corner, called the Christian flag, to mark Constitution Day, Sept. 17, in 2017.
The city had approved 284 consecutive applications to fly flags, usually those of other nations, before it rejected Shurtleff's because it was a Christian flag. The city said he could fly a different banner, but Shurtleff refused, and lower courts upheld the city's decision.
But the high court said the lower courts and the city were wrong. The case hinged on whether the flag-flying is an act of the government, in which case Boston can do whatever it wants, or private parties like Shurtleff, Breyer wrote.
Liberty Counsel, a nonprofit litigation organization, represented Shurtleff and Camp Constitution.
“Today is a historic day, and I was honored to present this religious viewpoint case before the U.S. Supreme Court,” said Liberty Counsel founder and Chairman Mat Staver. “This case is so much more significant than a flag. Boston cheated when it opened the flagpoles to all applicants and then excluded Christian viewpoints. The city then claimed that the flagpoles never were a public forum despite its history and express policy. The city’s censorship is clearly unconstitutional, and government cannot censor religious viewpoints.”
Alabama pastor Steve Dempsey has been in the business of preaching and teaching for nearly 50 years. He has seen a lot of changes in the ways Christians are treated and said this case is an example of that.
"In recent years, there have been a different set of rules for Christians," said Dempsey.
Dempsey said it is important for Christians to continue to have faith when faced with unfair circumstances.
"We have to just stand true to the Word of God," Demsey said. "It's God's rule and God's law, and it is what it is...They may change a lot of things, but they can't change the Word of God."
Clark said the change being seen for Christians in this particular case is a good sign.
"I would commend Liberty Counsel for the fantastic work that they did in this case,” Clark said. “This win would've been unthinkable 15 or 20 years ago, but now, if the government opens up its flagpole for people to fly things on, plus the Christian flag, they have to fly it on the same terms as everything else."
Clark said in the past, courts have looked at the Establishment Clause and ruled against Camp Constitution.
"But we have been making strides to use the Free Speech Clause and the Free Exercise Clause to try and chip away at bad court decisions about the acknowledgment of God in public,” Clark said.
“Today was a major victory showing that the Free Speech Clause and the Free Exercise Clause mean a lot more than bad Establishment clauses."
Justice Brett Kavanaugh acknowledged that it seemed the Establishment Clause was not the issue in this case since there has not been equal treatment of religious groups or religious speech.
“A government violates the Constitution when (as here) it excludes religious persons, organizations, or speech because of religion from public programs, benefits, facilities, and the like,” Kavanaugh wrote.
“This 9-0 decision from the Supreme Court strikes a victory for private speech in a public forum,” said Staver.
Breyer wrote that “the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech—though nothing prevents Boston from changing its policies going forward.”
The city previously said that in the event of a loss at the Supreme Court, it probably will change its policy to take more control of what flags can fly.
“Finally, we look at the extent to which Boston actively controlled these flag raisings and shaped the messages the flags sent. The answer, it seems, is not at all. And that is the most salient feature of this case,” Breyer wrote in an opinion that also riffed on the brutalist architectural style of Boston's City Hall and the Siena, Italy-inspired 7-acre plaza on which it sits.
Shurtleff is a former organizer with the John Birch Society and has used his Camp Constitution website to question the events of Jan. 6, 2021, at the U.S. Capitol, the outcome of the 2020 election that put President Joe Biden in office, the efficacy of COVID-19 vaccines and even who was behind the Sept. 11 attacks.
None of that was at issue at the high court.
The case is Shurtleff v. Boston, 20-1800. You can watch a recap from Staver by clicking here.
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