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Shurtleff v. City of Boston

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Supreme Court of the United States
Shurtleff v. City of Boston
Term: 2021
Important Dates
Argued: January 18, 2022
Decided: May 2, 2022
Outcome
Reversed and remanded
Vote
9-0
Majority
Stephen Breyer • Chief Justice John Roberts • Sonia Sotomayor • Elena Kagan • Brett Kavanaugh • Amy Coney Barrett
Concurring
Brett Kavanaugh • Samuel Alito (in judgment) • Neil Gorsuch (in judgment) • Clarence Thomas (in judgment)

Shurtleff v. City of Boston is a case that was decided by the Supreme Court of the United States on May 2, 2022, during the court's October 2021-2022 term. The case was argued before the court on January 18, 2022.

In a 9-0 opinion, the court reversed the decision of the United States Court of Appeals for the 1st Circuit and remanded the case for further proceedings. It held that the city of Boston violated the First Amendment when it denied a group's application to fly a Christian flag in front of city hall. Justice Stephen Breyer delivered the court's opinion. Justice Brett Kavanaugh wrote a concurring opinion, and Justices Samuel Alito and Neil Gorsuch wrote opinions concurring in the judgment, joined by Justice Clarence Thomas.[1]

HIGHLIGHTS
  • The issue: The case concerned religion, government speech, and whether a city flagpole is a public forum. Click here to learn more about the case's background.
  • The questions presented:
    1. "Whether the First Circuit’s failure to apply this Court’s forum doctrine to the First Amendment challenge of a private religious organization that was denied access to briefly display its flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, conflicts with this Court’s precedents holding that speech restrictions based on religious viewpoint or content violate the First Amendment or are otherwise subject to strict scrutiny and that the Establishment Clause is not a defense to censorship of private speech in a public forum open to all comers.
    2. "Whether the First Circuit’s classifying as government speech the brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, unconstitutionally expands the government speech doctrine, in direct conflict with this Court’s decisions in Matal v. Tam, 137 S. Ct. 1744 (2017), Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015), and Pleasant Grove City v. Summum, 555 U.S. 460 (2009).
    3. "Whether the First Circuit’s finding that the requirement for perfunctory city approval of a proposed brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants with hundreds of approvals and no denials, transforms the religious organization’s private speech into government speech, conflicts with this Court’s precedent in Matal v. Tam, 137 S. Ct. 1744 (2017), and Circuit Court precedents in New Hope Family Servs., Inc. v. Poole, 966 F.3d 145 (2d Cir. 2020), Wandering Dago, Inc. v. Destito, 879 F.3d 20 (2d Cir. 2018), Eagle Point Educ. Ass'n/SOBC/OEA v. Jackson Cnty. Sch. Dist. No. 9, 880 F.3d 1097 (9th Cir. 2018), and Robb v. Hungerbeeler, 370 F.3d 735 (8th Cir. 2004)."[2]
  • The outcome: The court reversed the decision of the United States Court of Appeals for the 1st Circuit and remanded the case for further proceedings, finding that the city of Boston violated the First Amendment when it denied a group's application to fly a Christian flag in front of city hall.


    • The case came on a writ of certiorari to the United States Court of Appeals for the 1st Circuit. To review the lower court's opinion, click here.[3]

    Timeline

    The following timeline details key events in this case:

    Background

    Petitioner Harold Shurtleff is the founder and director of Camp Constitution. According to the petitioner's writ of certiorari, "Camp Constitution's mission is to enhance understanding of the country's Judeo-Christian heritage, the American heritage of courage and ingenuity, the genius of the United States Constitution, and free enterprise."[4] In July 2017, Shurtleff filed a request with the City of Boston to fly a flag he referred to as a "Christian Flag" on one of Boston’s City Hall flagpoles.[4] The city owns and maintains three flagpoles on City Hall grounds. Upon request and with city approval, third parties may hang flags or pennants for a limited period of time on the third flagpole. At the time of Shurtleff's request, the city had no written policy for processing flag-raising applications. Gregory Rooney, Commissioner of Boston's Property Management Department, was concerned by the request because it related to a religious flag. Rooney reviewed past flag-raising requests and concluded that the city had not before flown a religious flag. With that, Rooney denied Shurtleff's request on the basis that the city would not fly a religious flag, citing the First Amendment to the United States Constitution prohibition of government establishment of religion, also known as the establishment clause. In the alternative, Rooney proposed raising a non-religious flag instead for the Camp Constitution event. The petitioners refused the offer. In September 2017, Shurtleff filed a request with the city to fly the religious flag for an event entitled "Camp Constitution Christian Flag Raising" on September 17, 2017. City officials did not respond to the request, concluding that its response to the first request provided ample explanation.[3]

    In 2018, the city drafted a written flag raising policy. In the policy, the city prohibited flying, among others, religious flags. In July of that year, Shurtleff et al. sued the city in the U.S. District Court for the District of Massachusetts seeking injunctive relief, declaratory judgment, and money damages. The district court denied the request and on appeal, the U.S. Court of Appeals for the 1st Circuit affirmed the ruling. Back in district court, Shurtleff and the city both moved for summary judgment. The district court granted in favor of the city and denied Shurtleff's motion. On appeal, the 1st Circuit upheld the district court's judgments.[3]

    First Amendment to the U.S. Constitution

    Text of Amendment I:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    Questions presented

    The petitioner presented the following questions to the court:[2]

    Questions presented:
    “
    1. Whether the First Circuit’s failure to apply this Court’s forum doctrine to the First Amendment challenge of a private religious organization that was denied access to briefly display its flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, conflicts with this Court’s precedents holding that speech restrictions based on religious viewpoint or content violate the First Amendment or are otherwise subject to strict scrutiny and that the Establishment Clause is not a defense to censorship of private speech in a public forum open to all comers.
    2. Whether the First Circuit’s classifying as government speech the brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, unconstitutionally expands the government speech doctrine, in direct conflict with this Court’s decisions in Matal v. Tam, 137 S. Ct. 1744 (2017), Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015), and Pleasant Grove City v. Summum, 555 U.S. 460 (2009).
    3. Whether the First Circuit’s finding that the requirement for perfunctory city approval of a proposed brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants with hundreds of approvals and no denials, transforms the religious organization’s private speech into government speech, conflicts with this Court’s precedent in Matal v. Tam, 137 S. Ct. 1744 (2017), and Circuit Court precedents in New Hope Family Servs., Inc. v. Poole, 966 F.3d 145 (2d Cir. 2020), Wandering Dago, Inc. v. Destito, 879 F.3d 20 (2d Cir. 2018), Eagle Point Educ. Ass'n/SOBC/OEA v. Jackson Cnty. Sch. Dist. No. 9, 880 F.3d 1097 (9th Cir. 2018), and Robb v. Hungerbeeler, 370 F.3d 735 (8th Cir. 2004).[5]
    		 ”

    Oral argument

    The U.S. Supreme Court heard oral argument on January 18, 2022.

    Audio

    Audio of oral argument:[6]



    Transcript

    Transcript of oral argument:[7]

    Outcome

    In a 9-0 opinion, the court reversed the decision of the United States Court of Appeals for the 1st Circuit and remanded the case for further proceedings. It held that the city of Boston violated the First Amendment when it denied a group's application to fly a Christian flag in front of city hall. Justice Stephen Breyer delivered the court's opinion. Justice Brett Kavanaugh wrote a concurring opinion, and Justices Samuel Alito and Neil Gorsuch wrote opinions concurring in the judgment, joined by Justice Clarence Thomas.[1]

    Opinion

    In the court's majority opinion, Justice Stephen Breyer wrote:[1]

    “

    When the government encourages diverse expression—say, by creating a forum for debate—the First Amendment prevents it from discriminating against speakers based on their viewpoint. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 828–830 (1995). But when the government speaks for itself, the First Amendment does not demand airtime for all views. After all, the government must be able to “promote a program” or “espouse a policy” in order to function. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. 200, 208 (2015). The line between a forum for private expression and the government’s own speech is important, but not always clear.

    This case concerns a flagpole outside Boston City Hall. For years, Boston has allowed private groups to request use of the flagpole to raise flags of their choosing. As part of this program, Boston approved hundreds of requests to raise dozens of different flags. The city did not deny a single request to raise a flag until, in 2017, Harold Shurtleff, the director of a group called Camp Constitution, asked to fly a Christian flag. Boston refused. At that time, Boston admits, it had no written policy limiting use of the flagpole based on the content of a flag. The parties dispute whether, on these facts, Boston reserved the pole to fly flags that communicate governmental messages, or instead opened the flagpole for citizens to express their own views. If the former, Boston is free to choose the flags it flies without the constraints of the First Amendment’s Free Speech Clause. If the latter, the Free Speech Clause prevents Boston from refusing a flag based on its viewpoint.

    We conclude that, on balance, Boston did not make the raising and flying of private groups’ flags a form of government speech. That means, in turn, that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint “abridg[ed]” their “freedom of speech.” U. S. Const., Amdt. I. [5]

    		”
    —Justice Stephen Breyer

    Concurring opinion

    Justice Brett Kavanaugh filed a concurring opinion.

    In his concurring opinion, Justice Kavanaugh wrote:[1]

    “

    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. See, e.g., Zelman v. Simmons-Harris, 536 U. S. 639 (2002). 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. See, e.g., Espinoza v. Montana Dept. of Revenue, 591 U. S. ___ (2020); Good News Club v. Milford Central School, 533 U. S. 98 (2001); McDaniel v. Paty, 435 U. S. 618 (1978). Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class. [5]

    		”
    —Justice Brett Kavanaugh

    Concurring in judgment

    Justice Alito

    Justice Samuel Alito filed an opinion concurring in the judgment, joined by Justices Clarence Thomas and Neil Gorsuch.

    In his concurring opinion, Justice Alito wrote:[1]

    “

    I agree with the Court’s conclusion that Boston (hereafter City) violated the First Amendment’s guarantee of freedom of speech when it rejected Camp Constitution’s application to fly what it characterized as a “Christian flag.” But I cannot go along with the Court’s decision to analyze this case in terms of the triad of factors—history, the public’s perception of who is speaking, and the extent to which the government has exercised control over speech—that our decision in Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. 200 (2015), derived from Pleasant Grove City v. Summum, 555 U. S. 460 (2009). See ante, at 6–12. As the Court now recognizes, those cases did not set forth a test that always and everywhere applies when the government claims that its actions are immune to First Amendment challenge under the government-speech doctrine. And treating those factors as a test obscures the real question in government-speech cases: whether the government is speaking instead of regulating private expression. [5]

    		”
    —Justice Samuel Alito

    Justice Gorsuch

    Justice Neil Gorsuch filed an opinion concurring in the judgment, joined by Justice Clarence Thomas.

    In his concurring opinion, Justice Gorsuch wrote:[1]

    “

    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.’” App. to Pet. for Cert. 157a; see also id., at 153a–154a. 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, 403 U. S. 602 (1971). Issued during a “‘bygone era’” when this Court took a more freewheeling approach to interpreting legal texts, Food Marketing Institute v. Argus Leader Media, 588 U. S. ___, ___ (2019) (slip op., at 8), Lemon sought to devise a one-size-fits-all test for resolving Establishment Clause disputes. That project bypassed any 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. [5]

    		”
    —Justice Neil Gorsuch

    Text of the opinion

    Read the full opinion here.

    October term 2021-2022

    See also: Supreme Court cases, October term 2021-2022

    The Supreme Court began hearing cases for the term on October 4, 2021. The court's yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.[8]

    The court agreed to hear 68 cases during its 2021-2022 term.[9] Four cases were dismissed and one case was removed from the argument calendar.[10]

    The court issued decisions in 66 cases during its 2021-2022 term. Three cases were decided without argument. Between 2007 and 2021, SCOTUS released opinions in 1,128 cases, averaging 75 cases per year.


    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 U.S. Supreme Court, Shurtleff v. City of Boston, decided May 2, 2022
    2. ↑ 2.0 2.1 U.S. Supreme Court, "20-1800 SHURTLEFF V. BOSTON, MA: QUESTION PRESENTED:," accessed October 1, 2021
    3. ↑ 3.0 3.1 3.2 U.S. Court of Appeals for the 1st Circuit Harold Shurtleff & Camp Constitution v. City of Bos., decided January 22, 2021
    4. ↑ 4.0 4.1 U.S. Supreme Court, "Shurtleff v. City of Boston: On Petition for Writ of Certiorari to the United States Court of Appeals for the First Circuit," accessed October 4, 2021
    5. ↑ 5.0 5.1 5.2 5.3 5.4 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    6. ↑ Supreme Court of the United States, "Oral Argument - Audio," argued January 18, 2022
    7. ↑ Supreme Court of the United States, "Oral Argument - Transcript," argued January 18, 2022
    8. ↑ SupremeCourt.gov, "The Supreme Court at Work: The Term and Caseload," accessed February 4, 2021
    9. ↑ Consolidated cases are counted as one case for purposes of this number.
    10. ↑ U.S. Supreme Court, "Order List: 593 U.S.," May 17, 2021
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