Court ruling on Boston flag is concerning
FFRF, while considering unfortunate the ruling May 2 involving a Christian flag at Boston City Hall, is cautioning that the decision does not mean governments in the future must fly religious flags. However, FFRF believes the concurring opinions by the court are chilling foreboding of coming decisions.
In a unanimous judgment, the U.S. Supreme Court ruled that the city of Boston violated the free speech clause when it declined to fly a Christian flag. The decision narrowly focuses on Boston’s practice of allowing private flags to be flown in conjunction with events held at City Hall near the flagpole. All justices agreed that the speech is private, not governmental, but several justices issued concurring opinions with different reasoning.
FFRF Legal Director Rebecca Markert points out, “While this decision doesn’t technically change the legal landscape, there is reason to be concerned given the rest of the high court’s docket with cases impacting religious liberty. The concurring opinions from Justices Neil Gorsuch and Brett Kavanaugh demonstrate that the separation between church and state remains in jeopardy.”
In reviewing whether the flags flown at Boston City Hall were government messages or private speech, Justice Stephen Breyer, who wrote the majority decision, joined by five other justices, conducted what he termed “a holistic inquiry.” He noted, “Our review is not mechanical; it is driven by a case’s context rather than the rote application of rigid factors.”
Breyer observed that other cities do not permit their flagpoles to be used in a similar manner, exemplified by the policy of the city of San Jose, Calif. San Jose limits flags to those approved by the city and declares such flags to be “an expression of the city’s official sentiments.” Breyer concludes that the flags in question are private speech, but nothing prevents the city from changing its policy to close the flagpole as a public forum.
While the majority opinion was narrow, a concurrence by Gorsuch reveals open hostility to the constitutional principle of separation between government and religion. He blasted decades of Supreme Court precedent that has upheld such separation. Joined by Justice Clarence Thomas, Gorsuch criticized the court’s Lemon test, which he derided as a byproduct of a “bygone era” and as an “anomaly” and a “mistake.” Gorsuch described the Lemon test, which codifies decades of court precedent on the Establishment Clause, as “a kind of children’s game” in which justices pick their own “reasonable observer” avatar. Gorsuch added, somewhat incoherently, “Don’t ask him whether the proposed display actually amounts to an establishment of religion. Just ask him if he feels it ‘endorsed religion.’ If so, game over.”
In Kavanaugh’s brief concurring opinion, he discusses the “mistaken understanding of the Establishment Clause.” He emphasized, “Under the Constitution, a government may not treat religious persons, religious organizations or religious speech as second class.”
FFRF strongly disagrees with such language.
“It’s simply laughable, particularly in today’s judicial environment, to propose that religious individuals or groups have been treated as second-class citizens,” comments Annie Laurie Gaylor, FFRF co-president. “The extremists on the court clearly have no problem with the endorsement of religion being conveyed when a U.S. city flies a Christian flag.”