Shurtleff vs Boston

Image by Mark Thomas from Pixabay

On 2-May-22, the United States Supreme Court announced their decision in Shurtleff v. Boston. The Court unanimously ruled that the city of Boston violated the first amendment rights of Hal Shurtleff. Mr. Shurtleff is the head of a group named Camp Constitution and he applied to the city of Boston to fly the Christian flag on a city flagpole. The city of Boston had three flagpoles outside their city hall; one flew the American flag and the second flew the state flag. The third flagpole is the focus of this case. The city of Boston has their own flag, but on the third flagpole private groups were allowed to apply for their group flag to be flown next to the other two. These groups were extremely diverse in viewpoints and included different nations, the pride flag, etc. Flags of all manner were flown on that third pole and the city allowed for them all. The first flag that the city objected to was the Christian flag that Mr. Shurtleff wanted to fly for a few hours, like all of the others. Boston objected on the grounds that allowing this flag and only this flag to fly would violate the establishment clause found in the first amendment and the city admitted that the only reason why they objected was because of the name of Mr. Shurtleff used on the application; the city objected to the word Christian. The city admitted that the exact same flag could have flown had Mr. Shurtleff written something different on the application. The court ruled unanimously that Mr. Shurtleff’s rights were violated because this was the only flag that wasn’t approved. What this decision means is that the government can’t discriminate against private speech in a public forum. The Court found that the city had established a public forum by opening the program to all applicants and only established a policy after denying Mr. Shurtleff.

What I find interesting about this case is that it was unanimous. All of the liberal and conservative justices agreed with this decision. Three concurrences were written, but Justice Kavanaugh’s was a brief paragraph noting only that the government can’t disfavor religious groups when distributing government benefits or accessing government programs.

The second concurrence was written by Justice Alito, joined by Justices Gorsuch and Thomas, and his concurrence focused on how this decision reached the right conclusion, but the reasoning used by the majority was incorrect because the speech analysis used in this case presents problems “when a government claims that speech by one or more private speakers is actually government speech. When that occurs, it can be difficult to tell whether the government is using the doctrine “as a subterfuge for favoring certain private speakers over others based on viewpoint[.]”

The other concurrence was written by Justice Gorsuch and joined by Justice Thomas. The focus of the concurrence was that this case is largely of the Court’s own making because the city of Boston and the courts below relied on a case that has been widely criticized and sometimes relied upon and sometimes not when dealing with religious cases originating at the Supreme Court in 1971 called the Lemon Test, from the Supreme Court case Lemon v. Kurtzman (1971). Because the Court has not formally overruled the Lemon Test, some local officials seeking to avoid liability for violating the Establishment Clause still rely on it. The Court has another chance to face the mistake of the Lemon Test in Kennedy v. Bremerton School District, which the Court heard oral arguments last week a decision is expected by July 1.

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1 thought on “Shurtleff vs Boston”

  1. Good example of reaching the right conclusion but with the wrong reasoning. It’s interesting in the same way I used to solve my algebra problems but always came up with the same answer. The algebra professor didn’t like my way.
    Maybe, like you say, the second time is charm.


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