The Supreme Court took five more cases this morning for this year’s term, including a Ted Cruz challenge to campaign finance rules. The most hot-button case is Shurtleff v. City of Boston, a lawsuit against the city of Boston for refusing to temporarily raise a “Christian flag” on a government-owned flagpole in front of its city hall. (Sadly, the suit does not demand that anything more dramatic be done to Boston City Hall, which is possibly the ugliest public building in America). The plaintiffs are Harold Shurtleff and the organization he runs, Camp Constitution, which seeks to promote awareness and understanding of America’s “Judeo-Christian moral heritage.” Shurtleff argues that the city discriminated against his speech by refusing to fly an explicitly Christian symbol, given that it has flown other flags with partially religious or anti-religious messages but justified its decision on the grounds that “[t]he City of Boston maintains a policy and practice of respectfully refraining from flying non-secular flags on the City Hall flagpoles.” . As the First Circuit, which ruled in favor of Boston, summarized Shurtleff’s case:
In the past, the pole in dispute has displayed country flags (according to the complaint, those of Albania, Brazil, Cuba, Ethiopia, Italy, Mexico, Panama, the People’s Republic of China, Peru, Portugal, and also that of the territory of Puerto Rico) as well as the flag of the Chinese Progressive Association, the LGBT rainbow flag, the transgender rights flag, the Juneteenth flag commemorating the end of slavery, and that of the Bunker Hill Association. Some of these third-party flags contain what Shurtleff alleges is religious symbolism. For instance, the Portuguese flag contains “dots inside the blue shields represent[ing] the five wounds of Christ when crucified” and “thirty dots that represents [sic] the coins Judas received for having betrayed Christ.” The Bunker Hill Flag contains a red St. George’s cross. And the City flag itself includes the Boston seal’s Latin inscription, which translates to “God be with us as he was with our fathers.” But nothing in the record indicates that the City has ever allowed the flag of any religion to be raised on the flagpole at issue.
Two years ago, the Court upheld the maintenance of a cross on public property as a World War I memorial. That, however, was an easier case for the cross: the government was defending keeping it rather than resisting it, so there was no free speech issue, only an Establishment Clause issue, and the cross had clear secular historical significance as a war memorial as well as its religious significance. Shurtleff’s challenge asks the Court to go further in defending religious speech as free speech, and may explicitly draw the contrast to some of the flags the government refused to fly. The case will likely be decided in May or June.