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Supreme Court says Boston unconstitutionally barred Christian flag from city hall
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The unanimous decision was sufficiently narrow that other cities, indeed Boston itself, could construct rules that would limit flag flying to government-approved messages.
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ADRIAN FLORIDO, HOST:
The U.S. Supreme Court ruled unanimously today that the city of Boston must let a Christian group fly its flag over city hall. But the decision was sufficiently narrow that other cities, indeed Boston itself, could construct rules that would limit flag flying to government entities. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Just outside Boston City Hall, there are three flagpoles. One flies the American flag. The second flies the state flag. And the third usually flies the city's flag - usually because Boston has for years allowed the hoisting of other flags on the third pole when groups get permission to hold ceremonies on the city plaza. Between 2005 and 2017, Boston approved 50 such flags, most of them marking the national holidays of other countries.
Still, a few of the flags were associated with other groups or causes - national pride week, emergency medical service workers and a community bank. In fact, the city had never rejected a flag-raising request until 2017, when Harold Shurtleff, representing an organization called Camp Constitution, asked to hold a flag-raising ceremony for a, quote, "Christian flag." The city, fearing that a Christian flag would be viewed as an unconstitutional government endorsement of a particular religion, rejected the application, and Shurtleff challenged the rejection in court. Today, he won in the Supreme Court.
The decision, written by Justice Stephen Breyer, managed to navigate a clash involving both religion and politics without wreaking havoc. As Yale law professor Akhil Amar puts it...
AKHIL AMAR: He found the sweet spot. Boston basically had, in his words, a come-one-come-all policy. Everyone's flag got to be flown except this organization's.
TOTENBERG: The key, wrote Breyer, is to what extent Boston was a government speaker and actually controlled the messages on the flags. And the answer was not at all. The city's lack of meaningful involvement, he said, leads us to conclude that these flag raisings were not government speech, where the government can control the message, but private speech - in fact, religious speech - that cannot be regulated by the city.
In a nod to the city, Breyer noted that nothing prevents Boston from changing its policy going forward to exclude private speech. It can say explicitly that flags are not intended to serve as a forum for free expression by the public.
The 13-page majority opinion was classic Breyer, managing to weigh many factors and achieve consensus in a restrained opinion that left both sides with a clearer idea of what is and is not permissible. That skill will likely be sorely missed when Breyer retires at the end of the term this summer.
Nina Totenberg, NPR News, Washington.
(SOUNDBITE OF ODDISEE'S "SOCIAL INSECURITY") Transcript provided by NPR, Copyright NPR.
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