Shurtleff v. Boston | Case No. 20-1800 | Date Argued: 1/18/2022 | Date Decided: 5/2/2022

Background: Boston creates designated public forums in many contexts, including on City Hall Plaza. Over a twelve-year period, the City approved 284 applications from private organizations to use one of the City's three flagpoles on the Plaza, which the City designated as a public forum for private speech. Boston approved all prior applications, denying none, and exercised no substantive control over the content of these 284 flag raisings. The City rejected only one application, Camp Constitution's request to briefly raise a Christian flag in connection with an event celebrating the civic contributions of Boston's Christian community. Although the City admitted that the flag raisings are private speech, it invoked the Establishment Clause to justify censoring Camp Constitution's Christian viewpoint.

Question Presented: Whether the First Circuit's failure to apply this Court's forum doctrine to the City's exclusion of the Christian flag from a city hall flagpole, which was designated as a public forum open to "all applicants" until the City denied access to the Christian flag, is inconsistent with this Court's precedents holding that speech restrictions based on religious viewpoint violate the First Amendment or are otherwise subject to strict scrutiny. Whether the First Circuit's classifying private religious speech as government speech because it occurs on a government flagpole in a public forum, when nothing about the religious speech or the circumstances of the temporary flag display in the forum is attributable to the government, conflicts with this Court's decisions in Matal v. Tam, 137 S. Ct. 1744 (2017), Pleasant Grove City v. Summum, 555 U.S. 460 (2009), and Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993). Whether the First Circuit's finding that the Establishment Clause justified a city's viewpoint-based exclusion of religious expression from a flagpole forum that was open to "all applicants" conflicts with this Court's precedents in Widmar v. Vincent, 454 U.S. 263 (1981), Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753 (1995), and Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995).

Holding: 1. Boston’s flag-raising program does not express government speech.

Result: Judgment REVERSED and case REMANDED.

Voting Breakdown: 9-0. Justice Breyer delivered the opinion of the Court, in which Chief Justice Roberts and Justices Sotomayor, Kagan, Kavanaugh and Barrett joined. Justice Kavanaugh filed a concurring opinion. Justice Alito filed an opinion concurring in the judgment, in which Justices Thomas and Gorsuch joined. Justice Gorsuch filed an opinion concurring in the judgment, in which Justice Thomas joined.

Link to Opinion: Here.

Oral Advocates:

For Petitioners: Mathew Staver, Orlando, Fla.; and Sopan Joshi, Assistant to the Solicitor General, Department of Justice, Washington, D.C. (for United States, as amicus curiae.) For Respondents: Douglas Hallward-Driemeier, Washington, D.C.