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Volume XII, Number 176

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When Government Does Not Speak, It May Not Discriminate on the Basis of Religion as to Access to a Public Facility: SCOTUS Today

Further evidencing an ongoing shift from more absolutist thinking about the intersection between the First Amendment’s Establishment Clause and an individual’s or group’s right of free speech, we find this morning’s unanimous decision in Shurtleff v. Boston in which the Court, reversing the First Circuit, held that the city of Boston violated the free speech clause of the First Amendment when it refused to let a group fly a Christian flag outside city hall. As Justice Breyer explained, in what will be among the last of his opinions:

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.

Here, it was clear enough.

The case at bar concerned a flagpole that stands outside Boston’s City Hall. Over a period of years, the City approved the requests to fly the flags of hundreds of organizations with a host of different types of messages or simple organizational or international insignias. Indeed, the City never denied a single one of these requests until 2017, when it rejected Shurtleff’s request to fly a Christian flag. The City did so out of a concern that flying a religious flag at City Hall could violate the Establishment Clause. Although the Court found that there were some factual arguments on Boston’s side, the decided balance weighed in favor of holding that, because the City performed no cognizable editorial function with respect to the flags of sponsoring organizations, Boston’s flag-raising program does not express government speech. Thus, the City’s refusal to let Shurtleff and his organization, Camp Constitution, fly their flag based on its religious viewpoint violated the Free Speech Clause of the First Amendment.

Concurring, Justice Kavanaugh reiterated a point that the conservative side of the Court has emphasized in recent years: a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with their secular counterparts in administering public programs and facilities. In another concurrence, Justice Gorsuch decries the fact of the amount of time and resources expended in this case when the point of the decision was obvious enough that all nine Justices readily agreed. Setting the stage for opinions in at least one pending case, and likely others in the future, Gorsuch attributes it to a general misunderstanding of the no-longer-applicable views expressed in Lemon v. Kurtzman, 403 U. S. 602 (1971).

©2022 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XII, Number 123
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About this Author

Stuart Gerson, Health Care Attorney, Epstein Becker Law Firm
Member of the Firm

STUART M. GERSON is a Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm's Washington, DC, and New York offices. Much of Mr. Gerson's practice has been centered on providing representation to clients in the health care industry (including insurers, hospitals, pharmaceutical manufacturers, managed care providers, and private equity funds, among others). He has extensive experience litigating cases involving the cybersecurity of health care information, trade secrets, and other confidential data as well as civil...

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