In Shurtleff v City of Boston, ___ US ___ (May 2, 2022), the United States Supreme Court issued a unanimous decision prohibiting the City of Boston from refusing to permit the display of a Christian Flag (described as a red cross on a blue field against a white background) on a City flagpole in front of City Hall. Yet, the Court issued four separate opinions. Why?
Most of the issue was the context. The City was concerned an observer might confuse the flag with the City’s necessarily neutral message vis-à-vis religion. However, the facts, considered as a whole, militated against this conclusion; as, in practice, the City had permitted private citizens to raise all kinds of flags in favor of a variety of causes, including a gay-pride flag. So, the legal question came down to how to distinguish between government speech and private speech on governmental premises. The lead opinion, authored by Justice Breyer, suggested resolving such issues using a three-part test: the history of the expression at issue; the public’s likely perception as to who (the government or a private person) was speaking; and the extent to which the government had actively shaped or controlled the expression. Evaluating the facts according to these factors, the lead opinion concluded displaying the Christian flag on the City’s flagpole did not violate the Establishment Clause.
Justice Kavanaugh, concurring for himself, saw the primary issue as a misunderstanding of First Amendment jurisprudence that led some to consider religious persons, organizations, or speech as second-class. Justice Alito, joined by Justices Thomas and Gorsuch, took lengthy issue with the three-part analytical framework set forth in the lead opinion as an acceptable method for distinguishing between governmental and private speech. Finally, Justice Gorsuch, joined by Justice Thomas, issued a concurring opinion that focused on the fundamental flaws inherent in using abstract multi-part tests, such as that relied on by the lead opinion, to resolve cases as opposed to relying on constitutional or statutory text and history.
Unfortunately, this genre of Supreme Court decision provides fewer answers than questions and reveals confusing jurisprudential rifts among the Justices. The City of Boston now knows what to do about the Christian flag. But federal agencies and state and local governments may be hard pressed to easily resolve the myriad of issues that will arise in the future about the constitutionally acceptable limits of private speech on governmental premises.