Showing posts with label anti-establishment. Show all posts
Showing posts with label anti-establishment. Show all posts

Friday, October 1, 2021

Boston flag scrap heads to Washington

Three flagpoles at Boston City Hall (photo by Daderot CC0 1.0)
A Boston First Amendment flag-flying case is Supreme Court bound.

The case centers on three flagpoles at Boston City Hall.  The city flies the U.S. flag and POW/MIA flag on one pole, the Massachusetts flag on the second, and usually, the city flag on the third.  However, the city occasionally replaces its own flag with another.  The city refused a request by Camp Constitution, a religiously oriented civic organization, to fly the Christian ecumenical flag.

The First Circuit, affirming the district court, ruled for the city.  The court applied the government speech doctrine, holding that the third flagpole was reserved for the government's own speech, not opened as any kind of public forum for private speech.

The decision was supported by the testimony of city commissioner George Rooney, who said that he reviewed applications for flag raising for "consisten[cy] with the City's message, policies, and practices." The city moreover relied on its own First Amendment obligation not to establish religion.

Camp Constitution maintains that the application process expressly dedicates the flagpole as a public forum, so the First Amendment public forum doctrine should pertain.  In a public forum approach, the appellant reasons, exclusion of the ecumenical flag would be an impermissible discrimination against a religious viewpoint.

As the parties' positions demonstrate, the line between government speech doctrine and public forum doctrine is not always bright.  The government has the power to utter its own messages; think of Nancy Reagan saying, "Just Say No," or President Biden telling people to get vaccinated.

But when government opens a forum for public participation, its ability to censor within the forum is limited to setting the parameters of the forum.  Censorship of messages based on content must satisfy heightened First Amendment scrutiny, and censorship based on viewpoint is generally disallowed.  The paradigm is a bulletin board in a city park where the public is invited to post flyers.

Forums can be metaphysical, too.  Public forum doctrine was employed to limit President Trump's ability to excommunicate Twitter followers.  Tumultuous litigation over vanity license plates in the states have tugged back and forth across the government speech-public forum line, depending on how the government sets up the program.

The problem here is in large part of the city's own making, because, the First Circuit told us, "the City had no written policy for handling flag-raising applications. What is more, Rooney had never before denied a flag-raising application."  So Rooney was processing "applications," when "applications" were not really a thing.

Three months after Camp Constitution initiated litigation, the city adopted a written policy.  The first rule of the policy, on which the city now relies, "forbids the 'display [of] flags deemed to be inappropriate or offensive in nature or those supporting discrimination, prejudice, or religious movements.'"

The city's position is not helped by its history of flying a lot of flags.  The court recounted:

In a twelve-year period (from June 2005 through June 2017), the City approved 284 flag-raising events that implicated its third flagpole. These events were in connection with ethnic and other cultural celebrations, the arrival of dignitaries from other countries, the commemoration of historic events in other countries, and the celebration of certain causes (such as "gay pride"). The City also has raised on its third flagpole the flags of other countries, including Albania, Brazil, Ethiopia, Italy, Panama, Peru, Portugal, Mexico, as well as China, Cuba, and Turkey. So, too, it has raised the flags of Puerto Rico and private organizations, such as the Chinese Progressive Association, National Juneteenth Observance Foundation, Bunker Hill Association, and Boston Pride.

The city balked, it said, when faced with a first request to fly a religious flag.  The city believes that distinction bolsters its position in consistent policy and anti-establishment.  The same fact supports Camp Constitution's position, that the city is impermissibly hostile toward religion.

Flag controversies have been raging across the country.  My own hometown of Barrington, R.I., was rent in factions when, after a racially charged confrontation between residents, the town manager flew the Black Lives Matter flag at the town hall.  The United Veterans Council objected to what it perceived as diminution of the U.S. flag.  Like in Boston, the controversy was fueled by the town's lack of a policy.

The Supreme Court granted cert. in the Boston case yesterday.  Track Shurtleff v. Boston, No. 20-1800, at the Supreme Court and at SCOTUSblog.  HT @ The Volokh Conspiracy.

Monday, June 26, 2017

Supreme Court chooses free exercise over anti-establishment today; does status-use distinction remain viable?

The U.S. Supreme Court ruled this morning in favor of the church in the religious freedom case about public subsidy of playground surfacing materials.  The Court held that Trinity Lutheran (Mo.) could not be excluded from the program to provide recycled tire rubber only because it is a church. 

There is some strong religious freedom language in the majority opinion.  From The Washington Post: <<Chief Justice John G. Roberts Jr., who authored the opinion, wrote, “The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution … and cannot stand.”>>

The vote was 7-2 with Justices Ginsburg and Sotomayor in dissent. 

The majority found the case rather easy, because Trinity Lutheran was excluded from a public program only because of its status as a church.  A discrimination on that basis alone can be supported only under the most exacting scrutiny, which Missouri could manage.  The Court left open the possibility that government discrimination against a church might be permissible, upon a much lesser burden, if a public benefit were to be converted to a religious use.

Justice Gorsuch
I point this out--and mention the case at all, as much more able commentators will opine in droves in the hours and days to come--only to highlight an intriguing (and telling?) paragraph in a separate opinion by new Justice Gorsuch, concurring, joined by Justice Thomas (citations omitted):

[T]he Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use. Respectfully, I harbor doubts about the stability of such a line. Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission? The distinction blurs in much the same way the line between acts and omissions can blur when stared at too long, leaving us to ask (for example) whether the man who drowns by awaiting the incoming tide does so by act (coming upon the sea) or omission (allowing the sea to come upon him)....
I don’t see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way.

In contrast, in another concurring opinion, Justice Breyer would have sharply limited the case to its facts.

The full decision and opinions in Trinity Lutheran Church of Columbia, Inc., v. Comer (no, not Comey, but a Missouri official, Comer) are available online.