Episode – 8: Bonus Episode! Shurtleff v. City of Boston

In this bonus epside Liz and Rebecca recap the case, which was discussed in Episode 1, and review the decision handed down by the Supreme Court at the end of June. They also discuss the impact this has for the separation of state and church moving forward.

Background

• SCOTUS Decision

Previous Episode on Shurtleff Case

Rebecca Markert: Hey listeners, welcome back to We Dissent. I’m Rebecca Markert, the legal director at the Freedom From Religion Foundation and one of your co-hosts

Liz Cavell: And I’m Liz Cavell associate counsel at FFRF and another co-host.

Rebecca Markert: This is another bonus episode to update you on a decision in a case that we discussed back in our second episode, a Shurtleff versus City of Boston. You may recall this involved a request by Harold Shurtleff and his organization Camp Constitution to raise the Christian flag on a city flag pole in front of Boston City Hall, the city of Boston denied his request and he sued, it went all the way up to the Supreme Court. And what happened at the Supreme Court?

Liz Cavell: Well, low and behold, this was a 9 to 0 decision, unanimous, the court proving it is still legitimate. And so this is a nine, 9-0 decision written by Justice Breyer holding, as we predicted, in favor of the Camp Constitution group and against the city of Boston, basically deciding that the flag flying program that Boston was operating did not amount to government speech. So the flags flying at the Boston City Hall were not government speech. And because of that, Boston couldn’t deny the petitioner’s request to fly the Christian flag and doing so violated the free speech clause of the First Amendment, Rebecca and I were pretty proud that we were cynical enough to predict a 9-0 opinion here and kind of just called that this would be a case where the Court would think like, oh, we have an opportunity here to, you know, do something unanimous and just, yeah, show our legitimacy. And this was actually one that was one of the opinions that was released, not in the last, you know, week, this terrible dumping of all the, of all the god awful opinions at this last week and a half of the term, this was one of the opinions that actually came out a couple of weeks ago.

Rebecca Markert: Like Liz said, we were proud of the fact that it was a unanimous decision because we got that right. I don’t know if you know this, but lawyers sometimes like to be right about things. We’re not only right in the way the votes came down in this case 9 to 0, but also what concurring opinions it drew from Justice’s Kavanaugh and Gorsuch. So we’ll talk a little bit about the decision itself and then move to these concurring opinions because the concurring opinions really involve the religious side of things. The majority opinion really did focus on the free speech aspect of the case. I mean, it was a free speech case. The majority comes down and says, yes, the city of Boston has devised a policy and practice that allows any individual organization to come in and raise a flag on its flag polls. And when they denied Camp Constitution, its request to fly that flag, fly the Christian flag on Constitution Day, September 17th, it violated their constitutional right to free speech.

Liz Cavell: Right? And we, we totally called this. I’m looking back at the transcript and Rebecca, Rebecca was like, I can definitely see a 9 to 0 majority on the free speech issue, but she also flagged and we all kind of agreed. We’ll see agreement on that because the court is so desperate to seize on what they agree on, which is okay. We can see that Boston allowed all of these flags that were not necessarily, you know, city flags, they were flags from private organizations. There was a pride flag, so many different flags of different nations. And usually these things were coinciding with, we talked about this in the episode, the many commemorative days that exist on the calendar, you know, like every day is national like something day. And so Boston would often be flying flags on, you know, in pride month, on for a certain period of time or like to commemorate certain days or certain things. And what Camp Constitution when. The Christian flag to coincide with the commemoration of was Constitution Day. And we talked a lot in the episode about how that is sort of the undercurrent here is this is a Christian nationalist crusade. And I’m, I talked obsessively about sort of like the on the level versus the, not on the level version of what’s going on here. And you guys might remember that the ACLU in this case actually filed their Amicus brief on the side of the petitioners, basically agreeing with and siding with the free speech interests in the case of the actual individuals, not the interests of the city of Boston. So this was predictable, but we all definitely said, you know, this is gonna be the place where we see all these concurring opinions about how messed up Boston’s interpretation of the Establishment Clause requirements are. And sure enough, we definitely got lots of, of language in these concurrences about the Establishment Clause and about hostility towards the petitioners and stuff like that.

Rebecca Markert: So Justice Kavanaugh was the one who wrote the first concurring opinion in this case, Justice Kavanaugh writes that the issue only arose because of a government official’s mistaken view of the Establishment Clause. They excluded an organization on the basis of religion, and that was the violation, not the Establishment Clause, being the stop gap to ensure that there’s no government endorsement of the Christian religion here.

Liz Cavell: Right. Kavanaugh just complaining that government officials are just like way too obsessed with not endorsing religion and they really need to focus more on not discriminating against Christianity.

Rebecca Markert: Why are they so concerned about the Establishment Clause, Liz, they just gotta stop that.

Liz Cavell: Yeah. They just need to chill out on that whole like theocracy thing. It’s fine.

Rebecca Markert: It’s fine.

Liz Cavell: Right. So we got yet another concurrence that was authored by Justice Alito and joined by Justices Thomas and Gorsuch. And Alito’s concurrence focused a lot on sort of his beef with some of the way that government speech has been analyzed in the past. So Alito was focused in his concurrence on just hammering how expressly government speech needs to be government speech. This flag program was clearly private speech because no one was authorized to speak on behalf of the government. There was a forum for speech created by the government and so it’s private speech. And so he just focused all of his ire on how important it is to narrow what constitutes government speech.

Rebecca Markert: And we did predict in our show, episode two, that we would get some sort of concurring opinion, if not the majority opinion, talking about government speech at length, I was actually surprised because I thought it was going to be Amy Barrett, but this concurring opinion was by Alito. But then Justice Gorsuch also wrote his own concurring opinion basically to just go off about the Establishment Clause. And the tests that we all know and love, maybe not love, but we all know it as the Lemon Test. It’s the test that has existed since the 1970s and is used to analyze Establishment Clause cases. He’s joined in his concurrence by Thomas, he essentially says that the city of Boston, in this case, doesn’t have a clear grasp on what the Establishment Clause is. And then also that the Lemon Test is unworkable and it’s created more confusion in the courts and there’s never really been an issue of having religious displays on government property and before Lemon, it was okay. And once Lemon came down, it just caused a whole bunch of chaos. Really, he’s just really wanting the court to overturn the case Lemon v. Kurtzman.

Liz Cavell: Right. So he writes separately just to give his analysis of like how everything was fine until Lemon. And then since Lemon look at all these cases that are crazy and he cites, cherry picks all the cases that he thinks did not know how to apply Establishment Clause principles, and just continues to complain about how, um, no one understands the Establishment Clause except him and Justice Thomas loved that. So he signed onto that concurrence by Justice Gorsuch.

Rebecca Markert: And Justice Gorsuch. When he was going off about the Lemon Test, he had this quote that in our office we were all talking about it just because it was kind of funny, but really sort of illustrates just how much he dislikes this test. He wrote: "Ultimately, Lemon devolved into a kind of children’s game. Start with a Christmas scene, a menorah, or a flag. Then pick your own “reasonable observer” avatar. In this game, the avatar’s default settings are lazy, uninformed about history, and not particularly inclined to legal research. His default mood is irritable. To play, expose your avatar to the display and ask for his reaction. How does he feel about it? Mind you: Don’t ask him whether the proposed display actually amounts to an establishment of religion. Just ask him if he feels it ‘endorses’ religion. If so, game over."

Liz Cavell: What a jerk because he is talking about, of course, plaintiffs that have a problem with Establishment Clause violations. And we’re all just a bunch of lazy, uninformed, irritable, jackasses who don’t know how to do legal research and who are just getting our feelings hurt by our government endorsing a religion that is not ours. So that’s how Justice Gorsuch feels about you if you would be such a litigant. And a lot of just more amazing word smithery by Justice Gorsuch is throughout his, his concurrence he uses this metaphor of like Lemon being dead and buried and in the grave, right? Like over the years it’s been so unworkable and this court has like refused to apply it in all these cases and he’s riffing on something that Scalia once wrote about the Lemon Test, being like a ghoul that rises from the dead and in your nightmares or something like that. That was so beloved by conservatives that now Gorsuch is continuing it here. And he’s talking about how the city of Boston basically to justify their policy again, dragged Lemon out of the grave and resurrected it here and just botched it all up. And what was just interesting about that now reflecting back on the whole term now that the Supreme Court has released all of its decisions is that this whole concept of the Establishment Clause as seen through the lens of Justice Gorsuch comes up again in one of the big opinions that, that we were waiting for in the Kennedy versus Bremerton case. And we’ll update you guys on that separately, but I thought that was very interesting foreshadowing in this concurrence. And we didn’t know at the time that Gorsuch would be the author of the Kennedy opinion, but of course there’s definitely some major foreshadowing here.

Rebecca Markert: There’s a lot of foreshadowing in this case for a lot of the other cases that we were watching at the court too. I mean this idea of the test being unworkable and causing confusion and chaos. These are themes that we see in the majority opinion for the Dobbs versus Jackson Women’s Health case that overturns the constitutional right to abortion. So these, this concurrence is particularly concerning just because of what it means for these other cases like Kennedy that Liz mentioned and Dobbs, and pretty much the future of what these justices think about the Establishment Clause.

Liz Cavell: Right? I gave zero props to the unanimous decision and nothing will ever convince me of the court’s legitimacy again. But the silver lining, I think, is that by putting together a 9-0 decision it’s somewhat limited the scope of what the decision is. I mean, I think we talked about this in the Shurtleff episode, the particular facts of like how this whole dispute arose and what the City of Boston was doing and the, the number of requests of flags that it flew versus like the number of denials, which was just this one and the way in which it went about denying this flag and the particular reason that was seen to be viewpoint based and not a reasonable kind of time place, manner restriction. I mean, there were a lot of limiting facts about this particular case that I think with the unanimous decision, it was somewhat more contained than what, obviously these concurring justices would’ve liked.

Rebecca Markert: Another silver lining is that the city of Boston shut down this forum. They’re not allowing flag requests to be submitted. They’re not raising flags based on individuals and organization requests like they did before. And they’re in their right to do that. A government does not need to open its property for this type of expression, particularly its flag poles. And so it remains to be seen whether they’re going to open that up again, or if they’re just going to keep it closed and just fly the flags that the city of Boston truly wants. But that’s a silver lining is that even though it was 9-0, a very strong opinion for free speech rights, which we also agree with.

Liz Cavell: And we talked about this, it’s a weird posture because of the competing interests, but the thing, the not on the level thing is the thing that really gets under our skin, which is, this is really just religious privilege, trying to get in where trying to get the imprimatur of government, where clearly city hall, a flag flying at city hall we would, most of us would’ve formally viewed that as government speech.

Rebecca Markert: Right? And the reason state church attorneys like us are interested in this case are because of the Establishment Clause concerns that were raised and the concurrences that we knew were going to come about in the decision that was handed down.

Liz Cavell: That’s the update on Shurtleff versus City of Boston. We have more case updates coming for the rest of the cases that we were watching this term. So follow our feed, look for those updates here. Don’t forget to check out our webpage we-dissent.org, and you can find us on the socials on Facebook and Twitter. I am Liz Cavell.

Rebecca Markert: I’m Rebecca Markert.

Liz Cavell: Thanks for listening.

Rebecca Markert: We Dissent is a joint production of the Freedom From Religion Foundation, American Atheists, and the American Humanist Association. It is hosted by attorneys, Liz Cavell, Alison Gill, Monica Miller, and me, Rebecca Markert. Special thanks to FFRF law student intern, Katie Stickland who assisted with producing this episode. Other production support comes from James Phetteplace and Greta Martens, audio engineering provided by Audio for the Arts based in Madison, Wisconsin. 

Thanks for listening.