Justices find unanimity in new religious freedom ruling

Written by William C. Duncan

May 5, 2022

Despite concerns about the divided nature of the Supreme Court, many of its decisions are unanimous (as noted here recently). This is true about religious freedom opinions as well. Another post here noted that Justice Stephen Breyer, who will be retiring this term, provides an example of how support for religious freedom often transcends the characterization of some justices as liberal and others as conservatives.

Of course, this week the attention is on division and on the unprecedented leak of a confidential draft. This, however, is an exception, as illustrated by another court opinion from earlier this week.

The case involves a Boston program that allows private organizations to display their flags on a pole outside city hall. As the syllabus of the opinion describes:

In 2017, Harold Shurtleff, the director of an organization called Camp Constitution, asked to hold an event on the plaza to celebrate the civic and social contributions of the Christian community; as part of that ceremony, he wished to raise what he described as the “Christian flag.” The commissioner of Boston’s Property Management Department worried that flying a religious flag at City Hall could violate the Establishment Clause and found no past instance of the city’s having raised such a flag. He therefore told Shurtleff that the group could hold an event on the plaza but could not raise their flag during it.

Shurtleff brought suit, challenging the denial on free speech and free exercise grounds. The lower courts decided that Boston could decline to display the flag, reasoning that the display would constitute “government speech.” In other words, the city could be understood to be endorsing the message of the flag and had the right to choose whether to do so or not.

Breyer’s majority opinion rejected the idea that displaying the flag was “government speech” since the city had allowed private organizations to display their flags on the pole without exercising control of the messages. Thus, “Boston’s refusal to allow petitioners to raise their flag because of its religious viewpoint violated the Free Speech Clause.”

The court’s conclusion – that the denial to display the Camp Constitution flag was unconstitutional – was unanimous.

Justice Brett Kavanaugh joined the majority opinion but wrote a brief separate opinion. He stressed that “a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like.” Rather: “Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class.”

In an opinion joined by Justices Clarence Thomas and Neil Gorsuch, Justice Samuel Alito expressed agreement with the result but not the reasoning of the majority opinion. Alito proposed a different approach for the court to determine when the government is speaking, and thus has complete control of a message: “[G]overnment speech occurs if—but only if—a government purposefully expresses a message of its own through persons authorized to speak on its behalf, and in doing so, does not rely on a means that abridges private speech.”

Gorsuch, joined by Thomas, wrote another opinion, arguing that the city’s confusion about the appropriate constitutional standard can be explained in part by the court’s decision in Lemon v. Kurtzman discussed in a recent post. The Lemon test, Gorsuch argued, should be replaced with a simpler, historically based analysis: “[G]overnment control over religion offends the Constitution, but treating a church on par with secular entities and other churches does not.” He concluded: “Our Constitution was not designed to erase religion from American life; it was designed to ensure ‘respect and tolerance.’”

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