Boston's City Hall religious flag denial violates the First Amendment

The Supreme Court has ruled that the City of Boston violated the First Amendment when it disallowed a Christian flag from the flagpole display outside City Hall. 

The case is Shurtleff v. City of Boston, decided on May 2. The City flies the American flag and the Commonwealth flag outside its municipal building. A third flagpole allows community organizations and other entities to have their own flag on display. This includes the Pride Flag, banners honoring emergency service members, and and dozens of other different flags. When a religious entity wanted to fly their own flag at City Hall, the City said no, worried about an Establishment Clause violation, i.e., the public might interpret the flag as the City's endorsement of religion.

Many years ago, the Establishment Clause objection might have carried the day. That was before the Supreme Court in the 1990s ruled that the government discriminates under the First Amendment when it excludes religious organizations from programs that are also extended to non-religious organizations. So that is no longer an issue in these cases. The issue now is whether the City can reject the flag under the "government speech" doctrine, which says the government can adopt its own political message without having to accommodate or make room for competing or other messages at the same forum. Under this principle, "when the government wishes to state an opinion, to speak for the community, to formulate policies, or to implement  programs, it naturally chooses what to say and what not to say." Permanent monuments in a public park, for example, are government speech, and you do not have the free speech right to build a competing monument on that property. But this is not an easy call when the government invites other people to speak or express themselves on government property. As Justice Breyer writes for the unanimous Court:

Our past cases have looked to several types of evidence to guide the analysis, including: the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.

Under this test, the religious organization wins. Yes, the government often flies its own flag at municipal buildings. As for the public's perception of whether the third-party flag conveys a governmental message, that issue seems to be a wash, the Court says. The deciding factor is that the City does not control who can raise these flags. The public is always invited to have their particular flag on display. The decisionmaker at City Hall does not even consider what the flag says or symbolizes in granting people's applications. Everyone gets their flag raised. This means the outside flags are not government speech but free speech for anyone with a flag.