Why Did SCOTUS Unanimously Find a Constitutional Right to Fly a Christian Flag on a City Hall Flagpole?

 by Michael C. Dorf

Today I'll talk about a case that the Supreme Court officially released last week. A unanimous Court, in an opinion by Justice Breyer, held that because Boston permitted secular groups to fly their flags on one of the three flagpoles in front of City Hall during permitted events, it also was required to permit a Christian group to fly its flag. The decision in Shurtleff v. Boston is arguably narrow. The U.S. Court of Appeals for the First Circuit had ruled for Boston on the ground that the display of a flag on City Hall grounds is government speech, and the government as speaker has much greater leeway to choose among messages it wishes to promote than it has as regulator of private speech. The bulk of Justice Breyer's opinion for the Court (in Part II) addresses this "basic question" of whether the government or the private group speaks by flying the flag. It concludes that the private group is the speaker.

However, that's not all that the opinion does. It also rejects the proposition that allowing the flying of the Christian flag (on a pole that is the same height as and adjacent to the poles flying U.S. flag and the Massachusetts flag) would violate the Establishment Clause. It then quickly proceeds to rely on the Court's free speech cases holding that government may not discriminate against religious speech to rule against the city.

In today's essay, I take issue with Justice Breyer's opinion in two ways: (1) The Court continues to treat government speech and private speech as though these are completely separate categories, rather than recognizing an intermediate category of mixed speech; and (2) the Court treats the federal First Amendment's Establishment Clause as the only legitimate source of church-state separation norms, thereby continuing the repudiation of an important principle--traceable to Chief Justice Rehnquist--that there is "play in the joints" between the two Religion Clauses of the First Amendment.

The category of government speech is a relatively recent doctrinal innovation, but the basic concept is sound. The government has limited power to regulate private speech at all, and in those settings in which it may do so--for example, by imposing time, place, and manner restrictions--it must do so even-handedly. The general requirement is that government regulation must be content-neutral and especially viewpoint-neutral. By contrast, if the government is speaking on its own behalf, it can favor its own message. A government campaign urging teens not to smoke need not be accompanied by a campaign urging them to smoke. A World War II memorial honoring fallen American service members need not give equal or any space to honor those who fought for the Nazis. Etc.

Those are easy cases. The actual cases the Court has faced are more difficult, because they involve some element of government speech but also some element of private speech. These include government acceptance of donated monuments in a public park (Pleasant Grove City v. Summum), state-issued specialty license plates (Walker v. Texas Division, Sons of Confederate Veterans), and government-issued trademarks (Matal v. Tam). The score is now tied 2-2. The Court found government speech in Summum and Texas Division, SCV; it found private speech in Matal and in last week's ruling in Shurtleff.

Are all the cases rightly decided? That's hard to say, because the categories are artificial. It's a bit like asking whether a particular shade of green is blue or yellow. It's neither or perhaps both. If forced to say one or the other, I suppose one could try to draw a line, but it would be more accurate to say something like "this shade of green is a bit closer to blue than yellow." Likewise, in all of the government speech cases, it would be better to say something like "here the private speech predominates, although there is an element of government speech as well."

In an excellent article in the 2008 NYU Law Review, Professor Caroline Corbin proposed a category of "mixed" government/private speech in recognition of the fact that the on/off character of the Court's then-still-emerging approach was too rigid. Alas, the Court did not accept her suggestion. Yet even if the Court will generally treat the government-versus-private speech question as binary in most cases, there are special reasons to adopt a different approach when the speech in question is religious in nature.

Imagine a case in which the private elements of speech predominate, even though the Court acknowledges that there are substantial elements of government speech. Actually, you don't need to imagine such a case. According to Justice Breyer's majority opinion, Shurtleff is such a case. He writes that "some evidence favors Boston, and other evidence favors Shurtleff." Under such circumstances, it is surely possible that some number of observers will attribute the speech--a religious flag--as emanating from Boston and thus an official endorsement of Christianity.

Of the three prior government speech cases discussed above, only Summum involved religious speech, and there the Court did not need to address any issue of government endorsement of religious speech because the majority found that the municipality was engaged in government speech. So it's worth considering how the government interest differs with respect to non-religious speech and religious speech.

In most difficult mixed speech cases, the government will have an interest in disassociating itself from certain messages. In SCV, the state of Texas didn't want the public to mistakenly assume that the state endorsed the display of a Confederate flag. In Matal, the Patent and Trademark Office didn't want the public to mistakenly think that the federal government approved of a racial slur (the name of a band). Those are perfectly legitimate interests. I wish the Court's doctrine were sufficiently sensitive to weigh them, rather than simply to decide the cases by the on/off government-versus-private speech determination. But even then, and other things being equal, the government has a still greater interest in avoiding communicating to the public the mistaken impression that it endorses specifically religious views. This interest is on top of its interest in avoiding association with ideas it disapproves.

Or at least one would have reasonably thought until recently. Yes, there was much criticism of the endorsement test during last month's oral argument in Kennedy v. Bremerton School District, but it did not come from the Democratic appointees, except to the extent that they, along with some of the Republican appointees, thought that the core issue in that case involved the risk of coercing prayer, not endorsement. At least some Justices had, I would have thought, not given up on the proposition that the Establish Clause forbids not only religious coercion but also forbids government endorsement of expressly religious speech.

Justice Breyer purports to avoid the endorsement question in Shurtleff by saying that the conclusion that Boston was not engaged in government speech eliminates any Establishment Clause issue. Yet that's a bit of a non sequitur.

The Court's prior cases do not equate the test for when mixed private/government speech counts as governmental speech with the test for when government has impermissibly endorsed religion. I understand that various Justices--perhaps a majority--don't think that government endorsement of religion is at all problematic under the Establishment Clause, but I wasn't aware that Justice Breyer (or Justices Sotomayor or Kagan) took that position.

Prior to last week's ruling in Shurtleff, it was still possible to argue that some forms of government accommodation of private speech on public grounds could violate the Establishment Clause because they amounted to impermissible endorsement. I disagreed with their bottom line in the Bladensburg Cross Case, but concurring there, Justices Breyer and Kagan made clear that they thought the key was that given all the surrounding context, a message of endorsement was not conveyed. They left open the possibility that a private religious symbol on public ground could amount to impermissible government endorsement of religion. And Justice Sotomayor joined the dissent of Justice Ginsburg, who specifically found impermissible endorsement. One wonders what has changed.

To be sure, it might be possible to conclude that the flying of the particular flag at issue in Shurtleff would not lead a reasonable observer to find endorsement. Here's what the flag looks like:

I suspect that average Bostonians walking past City Hall on a day that was flying would be as likely to guess that they were viewing the national flag of Norway as the flag of a Christian group. However, as I read the majority opinion, nothing in it turns on the particular flag design. The result would have been the same if the flag flying at Boston City Hall looked like this:

The Court found that: (1) Flying the flag was not government speech; therefore (2) there was no Establishment Clause violation; and thus (3) under the Court's precedents barring discrimination against religious speech, the petitioners had a right to fly their flag at City Hall during their event.

I have already explained why I think the precedents that make (1) an on/off proposition are too wooden. And I've explained why I think (2) doesn't necessarily follow from (1). Now I'll lament that the Court moves quickly from (2) to (3).

As the case came to the Supreme Court, it appears that the Boston city official who made the judgment that the petitioners should be denied the ability to fly their flag during their event was worried that permitting them to do so would be an Establishment Clause violation. Perhaps that's all that he worried about and thus was making a judgment about federal law. If so, the Supreme Court would be justified in reviewing that judgment de novo.

However, at least as the First Circuit saw the case, the Boston official was worried about church-state separation issues that might go beyond the literal requirements of the federal Establishment Clause. That court wrote: "while the Establishment Clause may not require a secular-flag policy, the City may act upon [its] legitimate concerns about excessive entanglement with religion in administering its flag-raising program. The City has presented just such a set of concerns in this case and, thus, has made a valid choice to remain secular" (internal quotation marks and First Circuit citations omitted).

Put differently, this ought to be a case for what the Supreme Court used to call "play in the joints" between the Establishment and Free Exercise (or as in this case, Free Speech) Clauses of the First Amendment. The core idea--first expressed this way in a 1970 case and reaffirmed in a 2004 majority opinion by Chief Justice Rehnquist--is that some forms of accommodation of religion are not forbidden by the Establishment Clause even though not required by the Free Exercise Clause (the 1970 case), while some efforts to separate church and state that go beyond the requirements of the Establishment Clause are permissible notwithstanding somewhat disadvantageous treatment of religious relative to secular activities. At its core, play in the joints was a principle of judicial modesty that gave non-judicial actors (like state legislators and local government officials) leeway to adopt a variety of approaches to some questions involving church-state interaction.

In recent years, however, the Court has shrunk the room for play in the joints to the vanishing point--mostly by reducing the scope of the Establishment Clause and expanding the scope of the Free Exercise Clause even more, so that it swallows up all of what used to be the neutral territory as well as most of what used to be forbidden by the Establishment Clause. Although the Court has not formally overruled the concept of play in the joints, recent cases suggest that virtually any disadvantageous treatment of religion in an effort by government to avoid church-state entanglements will be held invalid as a violation of Free Exercise or Free Speech if it is not required by the federal Establishment Clause.

That the Court in Shurtleff backed away from play in the joints is not surprising. That it did so unanimously in an opinion authored by Justice Breyer is both surprising and disappointing.