(RoyalPatriot.com )- On Tuesday, the Supreme Court held oral arguments on a lawsuit brought against the city of Boston after it refused to let a private organization raise a Christian flag in front of its City Hall. And from the way oral arguments went, it appears Boston is likely to lose.
The central question in Shurtleff v. City of Boston is whether the city created a public forum by allowing other private groups to use its flagpole or whether the city was conveying its own speech by picking and choosing which flags it approved.
The city, which had granted 284 requests to raise flags in connection to various events over twelve years, rejected the application made by Camp Constitution to raise a Christian flag at City Hall. The city determined raising a Christian flag would amount to a government endorsement of religion. Camp Constitution sued, arguing that the city’s decision violated its right to free speech.
A three-judge panel from the US First Circuit Court of Appeals in Boston unanimously ruled for the city on the ground that the government is entitled to pick and choose what messages it endorses.
However, during oral arguments on Tuesday, both Liberal and Conservative justices noted that the city had approved many similar requests from groups looking to celebrate their heritage or to promote such causes as gay pride, and by doing so, the city created a “public forum.”
Liberal Justice Elena Kagan said it was an understandable mistake that the city relied on the establishment clause of the First Amendment when it should have been focusing on the free speech clause. She said erecting a permanent cross on the roof of City Hall would violate the establishment clause, but banning a religious group from temporarily flying a flag on a public flagpole violated the free speech clause.
Sopan Joshi, the lawyer from the federal government arguing in support of Camp Constitution pointed out that there is a difference between the government soliciting a message and the government serving as a conduit for others to express their message.
Joshi said Boston created a public forum when it approved hundreds of other flags after only a cursory review of the applications.
Some justices did voice concern that a broad ruling in the case could cause unintended consequences. For example, what happens if someone wants to fly a swastika flag in front of Boston’s City Hall? The justices suggested the solution was for the city to exercise more control over the process to make it clear that it endorses the messages the flags convey.
A decision on this case is not expected until the summer.