CORRECTION, May 2, 2022: The original headline for this article implied that Trump-appointed Supreme Court justices Gorsuch and Kavanaugh were responsible for this decision, which was in fact a 9-0 Supreme Court decision. The liberal wing of the Supreme Court was every bit as responsible for this decision as any of the justices appointed by former President Donald Trump. In fact, the decision was written by liberal Justice Steven Breyer; if we were going to credit one justice with this decision, he would be the most logical choice. We have therefore corrected the headline.
The city of Boston violated the free speech rights of a Christian group by refusing to include the group’s flag in a third-party flag-raising program, according to a unanimous Supreme Court ruling released Monday.
The flag-raising program was meant to promote diversity and tolerance but, according to Reuters, the city refused to fly bearing the image of a cross submitted by a local Christian group called Camp Constitution.
Prior to Camp Constitution’s submission, all 284 flags submitted to the program were accepted. This included the flags of various foreign countries as well as at least one LGBT Pride flag, according to Reuters.
In October, following some litigation over the matter, Boston compared the Christian flag to the types of symbols used by terrorist groups and Nazi organizations, Reuters reported.
The city claimed that it could not “publicize messages antithetical to its own” and that opening up the flagpole to “all comers” would eventually force the city to raise flags antithetical to its values.
A lower court had previously affirmed this argument.
However, the Supreme Court’s 9-0 ruling Monday overturned that court’s decision.
According to Gabriel Malor, an attorney and author at The Federalist, Justices Brett Kavanaugh and Neil Gorsuch wrote concurring opinions alongside the court’s ruling, which was written by liberal Justice Stephen Breyer.
SCOTUS holds that it violated the free speech clause for Boston to exclude a Christian group’s flag from its third-party flag-raising program where it allowed all other third-party applicants to raise the flag of their choice. https://t.co/GIBay7YIPH pic.twitter.com/0Q1dXBov4U
— Gabriel Malor (@gabrielmalor) May 2, 2022
And here’s Justice Gorsuch, who points to Lemon, in part, as the source of the confusion. pic.twitter.com/D1DzKIbANA
— Gabriel Malor (@gabrielmalor) May 2, 2022
Justice Gorsuch muses that some still like to rely on the Lemon test, even though SCOTUS has declined to use it for twenty years, because it can be used to produce outcomes hostile to religious Americans. pic.twitter.com/gdq2qDbXZ2
— Gabriel Malor (@gabrielmalor) May 2, 2022
“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,” Kavanaugh wrote.
“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.
“Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class.”
Gorsuch seemed to agree with Kavanaugh’s assessment.
“If your policy goal is to lump in religious speech with fighting words and obscenity, if it is to celebrate only a ‘particular’ type of diversity consistent with popular ideology, the First Amendment is not exactly your friend,” Gorsuch wrote.
