Shurtleff v. Boston: Balancing the Establishment Clause and Freedom of Speech

/ First Amendment / By

John Schneider*1

I. Introduction

When first writing the Bill of Rights, the Framers recognized the need for the protection of religious freedom. To accomplish this, there needed to be a separation of church and state. The Establishment Clause (“Congress shall make no law respecting an establishment of religion”2) achieves this goal. Justice Hugo Black noted its importance in Engel v. Vitale (1962), writing, “the Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate.”3 In Gitlow v. New York (1925), the U.S. Supreme Court incorporated the First Amendment, making it applicable to local and state governments as well as Congress.4 Despite dozens of Supreme Court opinions from justices on both the left and right of the judicial spectrum, the Establishment Clause is still notoriously unclear.5 Shurtleff v. City of Boston (2022) provided the high court with an opportunity to reshape the interpretation of this integral part of the First Amendment. The government’s duty to not establish a religion came into conflict with its responsibility to protect and promote free speech, as required by the First Amendment; in Shurtleff, the Court drew the line on how the government should balance these sacred obligations.

This Note will argue that the Supreme Court ruled erroneously when it decided in favor of Shurtleff and will examine the relevant case law that should have guided the Court’s decision. This Note will also discuss the possible implications of the Supreme Court’s ruling.

II. Factual Background

Beginning in 2005, the City of Boston had a program allowing groups to apply to raise a flag on a flagpole installed in front of City Hall.6 This program was aimed to “promote diversity, increase inclusivity, and raise international and cultural awareness.”7 In order to fly a flag, groups had to submit an application. Until 2017, the City had approved all of the applications they had received, 284 in total.8 This perfect acceptance rate dropped in June of 2017 when Camp Constitution applied to have the “Christian flag” raised.9 Camp Constitution is a group whose mission is to “enhance understanding of our Judeo-Christian moral heritage, our American heritage of courage and ingenuity, including the genius of our United States Constitution, and the application of free enterprise, which together gave our nation an unprecedented history of growth and prosperity, making us the envy of the world.”10 The “Christian flag” features a white background and a blue canton that features a red cross. Camp Constitution wanted to raise the flag in celebration of Constitution and Citizenship Day on September 17.11 The request was rejected due to concern on the part of the Commissioner of the City’s Property Management Department that the flying of this flag would violate the Establishment Clause. Other flags with religious imagery had been flown before (for example, the Bunker Hill flag), but the City allowed them to fly because there was historical context to the imagery—the Bunker Hill flag, for example, was primarily associated with celebration of the American Revolution, not a religious group.12 Camp Constitution sued, claiming that their right to free speech was being violated when they were denied the opportunity to have their flag raised.13 The City of Boston won in both the U.S. District Court for the District of Massachusetts and in the First Circuit. However, the Supreme Court ruled against the City.

III. Precedent

The District Court noted that any observer would see the flag eighty-three feet above the ground in front of Boston City Hall and reasonably see the City as the speaker.14 Since raising the flags could reasonably be viewed as government speech, the Establishment Clause applies. While this may also be the case with the other flags, the other flags were not explicitly religious, and therefore would not be violations of the Establishment Clause. In Lemon v. Kurtzman (1971), the Supreme Court set the parameters of what constitutes a violation of the Establishment Clause. By putting up the flag of a group that promotes religion, the City of Boston would have clearly failed the Lemon test, as it would have essentially turned their flagpole into what would appear to be a billboard for Camp Constitution and the “Judeo-Christian” values they represent.15 The City of Boston’s flag raising would violate the second part of the test: “[a statute’s or governmental action’s] principal or primary effect must be one that neither advances nor inhibits religion.”16 The District Court of Massachusetts ruled that if Camp Constitution were to force Boston to raise the flag, this would fail the Lemon test, thus violating the Establishment Clause.17

In Walker v. Texas Division, Sons of Confederate Veterans (2015), the Supreme Court ruled that the government must have some level of control over the speech it promotes, as it otherwise could not function. In the opinion of the Court, Justice Stephen Breyer wrote, “How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary?”18 The precedent set by Walker shows that the government cannot operate effectively if it must advertise ideas contrary to its interest. The District Court ruled that the flags constituted government speech because governments often use flags to communicate and the City kept final approval authority, as had been the case in Walker.19 Since the City of Boston’s constitutional obligation is to not establish a religion (flag raising would constitute an establishment of religion under Lemon), they cannot be forced to speak in a manner antithetical to its duty of not establishing a religion. Notably, the First Circuit also cited Walker when stating, “Shurtleff is wrong to suggest that permanence [of the display] is required for there to be government speech,”20 meaning that it did not matter that the flag was only raised for a short period of time; the flag still constituted government speech.

In his oral argument on behalf of Shurtleff, attorney Matthew Staver referenced Matal v. Tam (2017), saying that not allowing the flag raising would be viewpoint discrimination and therefore unconstitutional, like the denial of Tam’s request to register his band name, “The Slants,” with the U.S. Trademark Office.21 In the decision in Matal, the Court specifically ruled that the Disparagement Clause of the Lanham Act of 1946, which prohibited trademarks that may denigrate certain groups, violated the First Amendment’s Free Speech Clause because it “engages in viewpoint-based discrimination.”22 Staver’s argument is moot because this is a case of government rather than private speech, so the Free Speech Clause (and therefore Matal) does not apply.

IV. Implications of Ruling

In May 2022, the Supreme Court ruled in favor of Shurtleff. The focus of Justice Breyer’s opinion was the forum doctrine. In its opinion, the Court noted the history of flags as communicative.23 The Court ruled that the City lacked “meaningful involvement” in the flag selection process or creating the messages associated with the program, meaning the program was not an act of government speech.24 As a public forum, in the Court’s view, the government could not engage in discrimination of religious views and, as such, should have allowed Camp Constitution to fly the “Christian flag.”25 In its ruling, the Court neglected the fact that Boston maintained final approval authority, even though it had never been exercised before. Just because they did not utilize the denial ability did not mean it did not exist. The Court also gives no instruction on what “meaningful involvement” should look like. If there was no prior reason to deny cases, naturally they would not have denied any applications. Should the City have been denying earlier requests simply to prove they had the authority to do so? 

Despite ruling unanimously in favor of Shurtleff, the Court still entered the political arena. In a concurring opinion, Justice Brett Kavanaugh goes as far as to imply that Boston treated religious groups as “second class.”26 Saying that a Democratic government is treating religious organizations poorly could energize conservatives, a consequence which a non-political Court should work at length to avoid. Before the decision was even handed down, University of Texas Law Professor Sanford Levinson noted this possibility, calling Shurtleff “red meat for the religious conservatives who now dominate the Supreme Court.”27 By deciding in favor of Shurtleff, the Supreme Court is wading deeper into the political waters it was designed to stay out of. Staying out of politics is also important for the Court’s legitimacy. Government Professor James L. Gibson found that “those holding more strongly politicized perceptions [expressed] considerably less support for the Court.”28 Therefore, by handing down a ruling in favor of Shurtleff that political groups will take advantage of, the Court will be further eroding its legitimacy as a non-partisan legalistic body.

Shurtleff also hinted at the further deconstruction of the Establishment Clause. In a concurring opinion, Justice Neil Gorsuch, joined by Justice Clarence Thomas, went so far as to refer to the test in Lemon as a “children’s game” where one would pick the “reasonable observer” and their mood, then allow them to determine whether an action violated the Establishment Clause.29 By removing the standards set in Lemon, the Establishment Clause becomes a lot harder to enforce, as future Courts would have very little practical standard on which to judge claims of Establishment Clause violations.

V. Conclusion

In Shurtleff v. City of Boston, the Supreme Court had the opportunity to choose its destiny. In the Court’s decision, Breyer kept the focus on the public forum doctrine, only dedicating a short section of the opinion to that concern. The conservative majority on the Court turned their focus to religion in the concurrences. Conservatives will likely hold power on the Supreme Court for the foreseeable future, so the concurring opinions that mention the destruction of Lemon, alongside other views on the increased liberties with which the government should treat religious groups, likely hold a lot of weight. With more religious liberties cases on the way (such as Kennedy v. Bremerton School District30), Shurtleff will likely serve as an important precedent when it comes to the boundaries of the public forum and the Establishment Clause—a precedent that right-leaning judges and justices may use to weaken the restraining powers of the Establishment Clause and increase the scope of the public forum, thereby encroaching on the boundaries between church and state.

  1. *B.A. Candidate for Political Science, Fordham College at Lincoln Center, Class of 2025. I would like to thank the Fordham Undergraduate Law Review for the opportunity to write and would like to thank the FULR Editorial Board along with my friends and family for their support and guidance throughout the writing process.
  2. U.S. Const. amend. I.
  3. Engel v. Vitale, 370 U.S. 421, 431 (1962).
  4. Gitlow v. New York, 268 U.S. 652, 666 (1925) (“freedom of the speech and of the press—which are protected from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”).
  5. First Amendment and Religion, U.S. Courts, https://www.uscourts.gov/educational-resources/educational-activities/first-amendment-and-religion#:~:text=The%20Establishment%20clause%20prohibits%20the,as%20the%20Church%20of%20England (“The Establishment clause prohibits the government from ‘establishing’ a religion. The precise definition of ‘establishment’ is unclear.”).
  6. Robert Barnes, Supreme Court seems to think Boston erred by denying Christian group that wanted to fly flag at city hall, Washington Post (Jan. 18, 2022), https://www.washingtonpost.com/politics/courts_law/supreme-court-boston-christian-flag/2022/01/18/137baa1a-7896-11ec-bf97-6eac6f77fba2_story.html.
  7. Bruno Babij & Jack Delano, Shurtleff v. City of Boston, Legal Information Institute, https://www.law.cornell.edu/supct/cert/20-1800 (last visited May 3, 2022).
  8. Id.
  9. Id.
  10. Camp Constitution Mission Statement, Camp Constitution, https://campconstitution.net/mission-statement/ (last visited May 3, 2022).
  11. Shurtleff v. Boston, 928 F.3d 166, 168 (1st Cir. 2019).
  12. Mark Walsh, Supreme Court will consider Christian group’s request to temporarily fly flag at Boston City Hall, ABA Journal (Jan. 13, 2022), https://www.abajournal.com/web/article/supreme-court-considers-christian-groups-request-to-temporarily-fly-flag-at-boston-city-hall.
  13. Shurtleff, 928 F.3d at 168.
  14. Id.
  15. See Justice Stephen Breyer’s comment during oral arguments: “right in front of the City Hall and two of them, one the state, one the national—federal—national flag. And the third one, I mean, what are you going to think? Of course, you think it has something to do with the City, something.” Transcript of Oral Argument, Shurtleff v. City of Boston, 142 S. Ct. 1583 (2022) (No. 20-1800), page 15 line 8.
  16. Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).
  17. Shurtleff v. Boston, 337 F. Supp. 3d 66, 77 (D. Mass. 2018).
  18. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 207 (2015).
  19. Shurtleff, 337 F. Supp. 3d at 74.
  20. Shurtleff, 928 F.3d at 175.
  21. Transcript of Oral Argument, Shurtleff v. City of Boston, 142 S. Ct. 1583 (2022) (20-1800), page 8 line 20.
  22. Matal v. Tam, 137 S. Ct. 1744, 1754 (2017).
  23. Shurtleff v. Boston, 142 S. Ct. 1583, 1598-1599 (2022).
  24. Id. at 1593.
  25. Id. at 1589.
  26. Id. at 1594 (Kavanaugh, J., concurring).
  27. Jeff Neal, Supreme Court Preview: Shurtleff v. Boston, Harvard Law Today (2022), https://today.law.harvard.edu/supreme-court-preview-shurtleff-v-boston/.
  28. James L. Gibson, Reconsidering Positivity Theory: What Roles do Politicization, Ideological Disagreement, and Legal Realism Play in Shaping U.S. Supreme Court Legitimacy?, 14 J. Empirical Legal Stud. 592, 604 (2017).
  29. Shurtleff, 142 S. Ct. at 1605.
  30. Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004 (9th Cir. 2021).
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