In our current polarizing, political environment, it’s virtually impossible for any elected or selected body to reach unanimous consensus on any contested matter.
So, when all nine members of the ideologically divided U.S. Supreme Court can reach the same conclusion, it’s a noteworthy achievement.
In this particular case, it’s an indictment on the city of Boston’s decision to deny a request to fly a Christian banner on a City Hall flagpole.
The high court ruled Monday that in doing so, Boston violated the free speech rights of a conservative activist.
Outgoing Justice Stephen Breyer, one of the court’s three liberal members, wrote that the city discriminated against Harold Shurtleff because of his “religious viewpoint,” despite routinely approving other applications to fly a flag outside City Hall.
Three flagpoles outside City Hall carry the U.S., state and city flags. On request, the city removes its own and temporarily flies a replacement.
Shurtleff and his group, Camp Constitution, asked 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 date the U.S. Constitution was signed in Philadelphia in 1787.
Justices noted that from 2005 to 2017, the city had approved all 284 flag requests for different countries, causes, businesses and organizations.
Until it decided to say no to Shurtleff.
The city said Shurtleff could fly a different banner, but he refused, and lower courts upheld the city’s rejection, a flawed decision in the high court’s view.
It said the lower courts and the city were wrong. Justice Breyer wrote the case hinged on whether the flag-flying constituted an act of the government, in which case Boston could do whatever it wants, or one of private parties like Shurtleff.
“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.”
In conclusion, 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.”
In a concurring opinion, conservative Justice Samuel Alito Jr. agreed.
“A program with this design cannot possibly constitute government speech,’’ he wrote. “The flags flown reflected a dizzying and contradictory array of perspectives that cannot be understood to express the message of a single speaker.’’
Obviously, the high court’s ruling shouldn’t be construed as an endorsement of Shurtleff or his far-right organization.
Instead, it should be viewed as a reinforcement of the basic right of anyone or any entity to avail itself of a public venue that every other petitioner had been allowed to use.
Even the American Civil Liberties Union and the Biden administration had filed briefs supporting Camp Constitution in the case.
While the high court stuck to the narrow question before it, it’s hard to imagine Shurtleff’s views didn’t factor into Boston’s denial.
According to the Associated Press, Shurtleff, a former organizer with the John Birch Society, has used his Camp Constitution website to question the Jan. 6 insurrection at the U.S. Capitol, the outcome of the 2020 presidential election, the efficacy of COVID-19 vaccines and the perpetrators of the Sept. 11 attacks.
While inimical to the majority, those views aren’t reasons to refuse a flag request on city property.