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Eyes Are on the Supreme Court to Not Just Protect Life, But the First Amendment

AP Photo/Mariam Zuhaib

The U.S. Supreme Court has been thrown into the spotlight all week over a leaked draft from Monday night that shows the Court is looking to overturn Roe v. Wade. Earlier that day, though, it was business as usual for the Court, as it released a decision on Shurtleff v. Boston

Not only did the Court rule that the City of Boston violated the First Amendment rights of Harold Shurtleff, the director of Camp Constitution, a Christian organization when it refused to fly his group's flag, it did so unanimously. Particularly in Shurtleff's favor was how the city had agreed to fly flags from other outside groups.

What was damning to the city's case was that the city did not control the raising of the flag and its messages. When not flying a flag representing the City of Boston, the flag from outside groups flies next to the American flag and the flag of the Commonwealth of Massachusetts. 

Toward the end of his opinion, Justice Breyer addressed "the extent to which Boston actively controlled these flag raisings and shaped the messages the flags sent," which he said "it seems, is not at all," which Breyer called "the most salient feature of the case." 

What control Boston did have appeared to be over logistical and maintenance issues. 

"To be sure, Boston maintained control over an event's date and time to avoid conflicts. It maintained control over the plaza's physical premises, presumably to avoid chaos. And it provided a hand crank so that groups could rig and raise their chosen flags. But it is Boston's control over the flags' content and meaning that here is key; that type of control would indicate that Boston meant to convey the flags' messages," Breyer continued. 

Here's where it really got bad for the city: 

...Boston told the public that it sought “to accommodate all applicants” who wished to hold events at Boston’s “public forums,” including on City Hall Plaza... The application form asked only for contact information and a brief description of the event, with proposed dates and times. The city employee who handled applications testified by deposition that he had previously “never requested to review a flag or requested changes to a flag in connection with approval”; nor did he even see flags before the events...The city’s practice was to approve flag raisings, without exception. It has no record of denying a request until Shurtleff ’s. Boston acknowledges it “hadn’t spent a lot of time really thinking about” its flag-raising practices until this case... True to its word, the city had nothing—no written policies or clear internal guidance—about what flags groups could fly and what those flags would communicate.

Further, as it applies to this being a Christian flag, which the city purposefully rejected for such a reason since it feared it would violate the Establishment Clause, the Court found that "in view of our government-speech holding here, that refusal discriminated based on religious viewpoint and violated the Free Speech Clause." Earlier in the opinion, Breyer wrote that "When a government does not speak for itself, it may not exclude speech based on 'religious viewpoint'; doing so 'constitutes impermissible viewpoint discrimination.'" 

In conclusion, Justice Breyer wrote that "we conclude that Boston's flagraising program does not express government speech. As a result, the city's refusal to let Shurtleff and Camp Constitution fly their flag based on its religious viewpoint violated the Free Speech Clause of the First Amendment." 

Predictably, atheist groups were horrified by the decision. 

It's worth emphasizing that the decision rests on the facts of the case, such as how Boston aims "to accommodate all applicants," which may explain why it was so clearly unanimous. Justice Breyer does mention in his decision that "nothing prevents Boston from changing its policies going forward." 

The Supreme Court has heard another First Amendment case, which may or may not be unanimous.  

Pending before the Court is Kennedy v. Bremertonwhich involves Coach Joe Kennedy, who is suing the Bremerton School District in Bremerton, Washington, after it asked him to cease praying during and after football games. 

While Coach Kennedy had prayed alone, sometimes he was joined by players from his team or even the opposing team. The prayer was completely voluntary. The school district and Coach Kennedy went through a back-and-forth, with the district telling Kennedy that if he were to pray, he could not allow students to pray with him, though he ultimately let the district know he would not comply and was placed on administrative leave. 

The district was concerned about violations of the Establishment Clause, though in columns for Townhall, CNSNews' Terry Jeffrey has highlighted how that is a particularly ridiculous argument, pointing to how chaplains in the U.S. Capitol can pray without them establishing a religion. 

A decision has not yet been handed down, though oral arguments were heard late last month. 


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