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Supreme Court rules that Boston had to let “Christian flag” fly in front of city hall

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The Supreme Court ruled unanimously today that the city of Boston violated the constitutional rights of Christians when it refused to fly the Christian flag in front of city hall while it was willing to fly the rainbow flag.

The Court said that the city created a forum when it started allowing some groups of people to use the flagpole for different events, and denying use of that forum violated the free speech rights of the Christian group that wanted to fly the Christian flag there.

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“When the government encourages diverse expression — say, by creating a forum for debate — the First Amendment prevents it from discriminating against speakers based on their viewpoint,” Justice Stephen Breyer wrote in the Court’s opinion. “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 case started in 2017 when Hal Shurtleff created the group Camp Constitution and applied to fly the Christian flag in a ceremony in front of Boston City Hall. There are three flagpoles there. One is used for the U.S. flag, one is for the Massachusetts flag, and another is used for various events by private organizations.

Property Management Commissioner Gregory Rooney told the group that its permit was denied and said it was because the city only allows secular flags to fly on city property.

“The City of Boston maintains a policy and practice of respectfully refraining from flying nonsecular flags on the City Hall flagpoles,” Rooney wrote. “This policy and practice is consistent with well-established First Amendment jurisprudence prohibiting a local government from ‘respecting an establishment of religion.’ This policy and practice is also consistent with City’s legal authority to choose how a limited government resource, like the City Hall flagpoles, is used.”

With help from the anti-LGBTQ legal organization Liberty Counsel, Camp Constitution sued the city. Liberty Counsel argued that the city allowed the rainbow flag, the trans pride flag, and the Juneteenth flags to fly, so they should allow the Christian flag there too.

In 2018, U.S. District Judge Denise Casper shot down their claims, saying that the “primary purpose” of an event to raise a Christian flag “would be to convey government endorsement of a particular religion by displaying the Christian flag alongside that of the United States and the commonwealth in front of City Hall.”

“Blowing in the wind, these side-by-side flags could quite literally become entangled,” she wrote.

They appealed and lost again, before asking the Supreme Court to hear their case.

The Supreme Court ruled that Boston didn’t exercise control over who could use the third flagpole, citing the fact that 284 different flag raising events occurred there in the last 12 years. That meant, to the Court, that the flags that went up there weren’t government speech, but private speech on a government forum.

“Under the Constitution, a government may not treat reli­gious persons, religious organizations, or religious speech as second-class,” Justice Brett Kavanaugh wrote in a concurring opinion.

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