Latest Supreme Court religious freedom case: Boston flagpole dispute

Written by William C. Duncan

October 6, 2021

A thoughtful reporter asked me recently why the Supreme Court – whose new term started this week – has been deciding what seems like a large number of religious freedom cases. It is a good question, and there are probably many reasons, but an important one appears to be an increasing intolerance among the justices for the unequal treatment of religion.

Last week, the court announced it would hear another case involving a claim of unequal treatment.

The city of Boston has designated a city flagpole as a “public forum” – a place where all types of organizations can briefly display their flags. The organizations submit applications, and other than the plaintiffs in this case, none had been denied in 12 years. Camp Constitution, a Christian organization that sponsors educational camps, applied to have its flag displayed for an hour, but its application was denied.

The district court and court of appeals both ruled for the city. They determined that the decision of which flags could be displayed was a form of government speech (i.e., official government message), which the government could control at its discretion. The Supreme Court will now decide whether the organization’s free speech and religious freedom rights were infringed.

Religious groups and advocates for civil rights were disappointed in 1990 when the Supreme Court significantly lowered the threshold for governments to act in ways that burdened religious exercise. For the preceding three decades, the court had required the government to show that it had a compelling reason for limiting the exercise of religious practices, and even then, government could enact only limitations that were absolutely necessary.

The 1990 case, Employment Division v. Smith, rejected a religious freedom claim by a Native American man who was fired after participating in a ceremony involving ritual use of peyote. The court said the state only needed to show it was treating religiously motivated actions no worse than similar secular practices.

This was a large step back from the robust protection that had previously been provided, and the decision has been widely criticized, including by current members of the court. The criticism seems just: It is unlikely that the First Amendment’s express command that governments not prohibit the free exercise of religion actually means that they can do so as long as they prohibit the free exercise of similar secular pursuits.

What was not immediately clear at the time of the Smith decision was that there might still be routes to protect religious liberty. It took two unique cases – involving, respectively, ritual animal sacrifices and recycled tires – to make this clear.

In the first, the court ruled that a Florida city could not single out religious animal sacrifices for prohibition while allowing all other similar killing of animals. In the second, the court ruled Missouri could not exclude only religious schools from a grant program to provide recycled tires to create safer playgrounds. Both cases relied on the First Amendment to the Constitution.

During the pandemic, the court has reiterated that treating religious worship services differently from similar gatherings is also unconstitutional.

While the court should eventually revisit the limited protection it gives to religious exercise under its current interpretation of the First Amendment, its increased attention to manifest inequalities in the treatment of religious groups and individuals is welcome. Though the stakes in this particular case in Boston may not be overwhelming (except to the plaintiffs), the court could help guide state and local governments in their treatment of religion to a more equitable course.

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