Shurtleff v. City of Boston (2022)

Shurtleff v. City of Boston (2022)

596 U.S. ___ (2022)

On the plaza, near Boston City Hall’s entrance, stand three 83-foot flagpoles. Boston flies the American flag from the first pole (along with a banner honoring prisoners of war and soldiers missing in action). The city flies the flag of the Commonwealth of Massachusetts on the second pole. On the third pole, the city usually (but not always) flies Boston’s city flag.

Since at least 2005, Boston made City Hall Plaza available to the public for events and allowed private groups to request use of the third flagpole to raise flags of their choosing for the duration of the groups’ event, typically a couple of hours. Between 2005 and 2017, Boston approved 50 unique flags (often flags of other countries). The city had no record of refusing a flagpole request before the events that gave rise to this case.

In July 2017, Harold Shurtleff, the director of an organization called Camp Constitution, asked to host a flag-raising event commemorating the “civic and social contributions of the Christian community.” As part of the ceremony, the group sought to raise what it described as a “Christian flag,” which included a red cross on a blue field against a white background. The commissioner of Boston’s Property Management denied the group’s request, noting that the problem was “not the content of the Christian flag,” but “the fact that it was the Christian flag or called the Christian flag.” The commissioner worried that flying a religious flag at City Hall would violate the Establishment Clause.

The Supreme Court unanimously decided the case in favor of Shurtleff on First Amendment free speech grounds. The Court found that the City had made the flag pole and plaza a “public forum,” and thus exercised unconstitutional viewpoint discrimination when it denied Shurtleff’s request based on its religious viewpoint. Excerpted below are concurring opinions that address the Establishment Clause dimensions of the case.

Opinion of the Court: Breyer, Roberts, Thomas, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett

Concurring opinion: Kavanaugh

Opinions concurring in the judgment: Alito, Gorsuch

JUSTICE KAVANAUGH, concurring.

This dispute arose only because of a government official’s mistaken understanding of the Establishment Clause. A Boston official believed that the City would violate the Establishment Clause if it allowed a religious flag to briefly fly outside of City Hall as part of the flag-raising program that the City had opened to the public. So Boston granted requests to fly a variety of secular flags, but denied a request to fly a religious flag. As this Court has repeatedly made clear, however, 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. On the contrary, a government violates the Constitution when (as here) it excludes religious persons, organizations, or speech because of religion from public programs, benefits, facilities, and the like. Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class.

JUSTICE GORSUCH, with whom JUSTICE THOMAS joins, concurring in the judgment.

The real problem in this case doesn’t stem from Boston’s mistake about the scope of the government speech doctrine or its error in applying our public forum precedents. The trouble here runs deeper than that. Boston candidly admits that it refused to fly the petitioners’ flag while allowing a secular group to fly a strikingly similar banner. And the city admits it did so for one reason and one reason only: It thought displaying the petitioners’ flag would violate “‘the [C]onstitution’s [E]stablishment [C]lause.’” That decision led directly to this lawsuit, all the years of litigation that followed, and the city’s loss today. Not a single Member of the Court seeks to defend Boston’s view that a municipal policy allowing all groups to fly their flags, secular and religious alike, would offend the Establishment Clause.

How did the city get it so wrong? To be fair, at least some of the blame belongs here and traces back to Lemon v. Kurtzman (1971). Issued during a “‘bygone era’” when this Court took a more freewheeling approach to interpreting legal texts, Lemon sought to devise a one-size-fits-all test for resolving Establishment Clause disputes. That project bypassed any [2] inquiry into the Clause’s original meaning. It ignored longstanding precedents. And instead of bringing clarity to the area, Lemon produced only chaos. In time, this Court came to recognize these problems, abandoned Lemon, and returned to a more humble jurisprudence centered on the Constitution’s original meaning. Yet in this case, the city chose to follow Lemon anyway. It proved a costly decision, and Boston’s travails supply a cautionary tale for other localities and lower courts.

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To see how all this unfolded, start with Lemon itself. Lemon held out the promise that any Establishment Clause dispute could be resolved by following a neat checklist focused on three questions: (1) Did the government have a secular purpose in its challenged action? (2) Does the effect of that action advance or inhibit religion? (3) Will the government action “excessive[ly] … entangl[e]” church and state? But from the start, this seemingly simple test produced more questions than answers. How much religion-promoting purpose is too much? Are laws that serve both religious and secular purposes problematic? How much of a religion-advancing effect is tolerable? What does “excessive entanglement” even mean, and what (if anything) does it add to the analysis? Putting it all together, too, what is a court to do when Lemon’s three inquiries point in conflicting directions? More than 50 years later, the answers to all these questions remain unknown. . . .

If anything, the confusion grew with time. In the years following Lemon, this Court modified its “effects” test by requiring lower courts to ask whether a “reasonable observer” would consider the government’s challenged action to be an “endorsement” of religion. See, e.g., County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 593 (1989); id., at 630 (O’Connor, J., concurring in part and concurring in judgment). But rather than fix Lemon’s problems, this new gloss compounded them. . . .

Ultimately, Lemon devolved into a kind of children’s game. Start with a Christmas scene, a menorah, or a flag. Then pick your own “reasonable observer” avatar. In this game, the avatar’s default settings are lazy, uninformed about history, and not particularly inclined to legal research. His default mood is irritable. To play, expose your avatar to the display and ask for his reaction. How does he feel about it? Mind you: Don’t ask him whether the proposed display actually amounts to an establishment of religion. Just ask him if he feels it “endorses” religion. If so, game over.

Faced with such a malleable test, risk-averse local officials found themselves in an ironic bind. To avoid Establishment Clause liability, they sometimes felt they had to discriminate against religious speech and suppress religious exercises. But those actions, in turn, only invited liability under other provisions of the First Amendment. The hard truth is, Lemon’s abstract and ahistoric test put “[p]olicymakers … in a vise between the Establishment Clause on one side and the Free Speech and Free Exercise Clauses on the other.”

Our case illustrates the problem. The flags of many nations bear religious symbols. So do the flags of various private groups. Historically, Boston has allowed them all. The city has even flown a flag with a cross nearly identical in size to the one on petitioners’ flag. It was a banner presented by a secular group to commemorate the Battle of Bunker Hill. Yet when the petitioners offered their flag, the city flinched. Perhaps it worried: Would the assigned judge’s imagined “reasonable observer” bother to learn about its generous policy for secular groups? Would this observer take the trouble to consult the long tradition in this country allowing comparable displays? Or would he turn out to be an uninformed passerby offended by the seeming incongruity of a new flag flying beside those of the city, State, and Nation? Who could tell. Better to err on the safe side and reject the petitioners’ flag. As it turned out, though, that route only invited years of litigation and a unanimous adverse decision because no government may discriminate against religious speech in a public forum. To avoid a spurious First Amendment problem, Boston wound up inviting a real one. Call it a Lemon trade.

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While it is easy to see how Lemon led to a strange world in which local governments have sometimes violated the First Amendment in the name of protecting it, less clear is why this state of affairs still persists. Lemon has long since been exposed as an anomaly and a mistake.

From the birth of modern Establishment Clause litigation in Everson v. Board of Ed. of Ewing, this Court looked primarily to historical practices and analogues to guide its analysis. So, for example, while the dissent in Everson disagreed with some of the majority’s conclusions about what qualifies as an establishment of religion, it readily agreed that “[n]o provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment.” (Rutledge, J., dissenting). This approach fit, too, with this Court’s usual course in other areas. Often, we have looked to early and long-continued historical practices as evidence of the Constitution’s meaning at the time of its adoption. And, in the years following Everson, the Court followed this same path when interpreting the Establishment Clause. Agree or disagree with the conclusions in these cases, there can be little doubt that the Court approached them in large part using history as its guide.

Lemon interrupted this long line of precedents. It offered no plausible reason for ignoring their teachings. And, as we have seen, the ahistoric alternative it offered quickly proved both unworkable in practice and unsound in its results. Nor is it as if Lemon vanquished the field even during its heyday. Often, this Court continued to look to history to resolve certain Establishment Clause disputes outside the context of religious displays. And several early decisions applying Lemon were themselves rapidly overruled in part or in whole. All of which in time led Justice after Justice to conclude that Lemon was “flawed in its fundamentals,” “unworkable in practice,” and “inconsistent with our history and our precedents.

 Recognizing Lemon’s flaws, this Court has not applied its test for nearly two decades. In Town of Greece v. Galloway, this Court declined an invitation to use the Lemon test. Instead, the Court explained that the primary question in Establishment Clause cases is whether the government’s conduct “accords with history and faithfully reflects the understanding of the Founding Fathers.” The Court observed that this form of analysis represents the rule rather than “an exception” within the “Court’s Establishment Clause jurisprudence.”

In American Legion v. American Humanist Association we underscored the message. Again we expressly refused to apply Lemon, this time in a challenge to a public display—the very kind of dispute Lemon’s test ushered into existence and where it once held sway. Again we explained that “[i]f the Lemon Court thought that its test would provide a framework for all future Establishment Clause decisions, its expectation has not been met.” And again we stressed that the right place to look for guidance lies in ““historical practices and understandings.”’

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With all these messages directing and redirecting the inquiry to original meaning as illuminated by history, why did Boston still follow Lemon in this case? Why do other localities and lower courts sometimes do the same thing, allowing Lemon even now to “si[t] up in its grave and shuffl[e] abroad”? Lamb’s Chapel v. Center Moriches Union Free School Dist. (Scalia, J., concurring in judgment). There may be other contributing factors, but let me address two.

First, it’s hard not to wonder whether some simply prefer the policy outcomes Lemon can be manipulated to produce. . . .

There is more than a little in the record before us to suggest this line of thinking. As city officials tell it, Boston did not want to “‘display flags deemed to be inappropriate or offensive in nature or those supporting discrimination, prejudice, or religious movements.’” Instead, the city wanted to celebrate only “a particular kind of diversity.” And if your policy goal is to lump in religious speech with fighting words and obscenity, if it is to celebrate only a “particular” type of diversity consistent with popular ideology, the First Amendment is not exactly your friend. Dragging Lemon from its grave may be your only chance. . . .

Second, it seems that Lemon may occasionally shuffle from its grave for another and more prosaic reason. By demanding a careful examination of the Constitution’s original meaning, a proper application of the Establishment Clause no doubt requires serious work and can pose its challenges. Lemon’s abstract three-part test may seem a simpler and tempting alternative to busy local officials and lower courts. But if this is part of the problem, it isn’t without at least a partial remedy. For our constitutional history contains some helpful hallmarks that localities and lower courts can rely on.

Beyond a formal declaration that a religious denomination was in fact the established church, it seems that founding-era religious establishments often bore certain other telling traits. First, the government exerted control over the doctrine and personnel of the established church. Second, the government mandated attendance in the established church and punished people for failing to participate. Third, the government punished dissenting churches and individuals for their religious exercise. Fourth, the government restricted political participation by dissenters. Fifth, the government provided financial support for the established church, often in a way that preferred the established denomination over other churches. And sixth, the government used the established church to carry out certain civil functions, often by giving the established church a monopoly over a specific function. Most of these hallmarks reflect forms of “coerc[ion]” regarding “religion or its exercise.” Lee v. Weisman (Scalia, J., dissenting); Van Orden (Thomas, J., concurring).

These traditional hallmarks help explain many of this Court’s Establishment Clause cases, too. This Court, for example, has held unlawful practices that restrict political participation by dissenters, including rules requiring public officials to proclaim a belief in God. It has checked government efforts to give churches monopolistic control over civil functions. See Larkin v. Grendel’s Den, Inc. (1982). At the same time, it has upheld nondiscriminatory public financial support for religious institutions alongside other entities. See Espinoza v. Montana Dept. of Revenue; Trinity Lutheran Church of Columbia, Inc. v. Comer; Zelman v. Simmons-Harris (2002). The thread running through these cases derives directly from the historical hallmarks of an establishment of religion—government control over religion offends the Constitution, but treating a church on par with secular entities and other churches does not.

These historical hallmarks also help explain the result in today’s case and provide helpful guidance for those faced with future disputes like it. As a close look at these hallmarks and our history reveals, “[n]o one at the time of the founding is recorded as arguing that the use of religious symbols in public contexts was a form of religious establishment.” For most of its existence, this country had an “unbroken history of official acknowledgment by all three branches of government of the role of religion in American life.” In fact and as we have seen, it appears that, until Lemon, this Court had never held the display of a religious symbol to constitute an establishment of religion. The simple truth is that no historically sensitive understanding of the Establishment Clause can be reconciled with a rule requiring governments to “roa[m] the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine.” Our Constitution was not designed to erase religion from American life; it was designed to ensure “respect and tolerance.”

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To justify a policy that discriminated against religion, Boston sought to drag Lemon once more from its grave. It was a strategy as risky as it was unsound. Lemon ignored the original meaning of the Establishment Clause, it disregarded mountains of precedent, and it substituted a serious constitutional inquiry with a guessing game. This Court long ago interred Lemon, and it is past time for local officials and lower courts to let it lie.