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Monica, Liz, Rebecca, and Alison review the case, Shurtleff v. City of Boston, in which the city of Boston denied a religious organization, Camp Constitution, its request to fly the Christian flag at city hall. The hosts discuss the free speech and religion clause arguments presented at oral arguments in December 2021.
*Note, this episode was recorded prior to the Supreme Court handing down the decision on May 2, 2022. An update to this episode is forthcoming.
Background
Relevant Cases
Rebecca Markert: Hey listeners. We recorded this episode earlier this year. Since that time, the Supreme Court handed down its decision in this case, it was a unanimous decision in favor of the religious organization Camp Constitution. We believe the discussion is still relevant to the issues, and we will be recording an update to this episode soon. So please stay tuned.
Monica Miller: Hi, and welcome to We Dissent, a podcast highlighting secular women attorneys in discussing issues important to religious Liberty in the separation of religion and government. I’m Monica Miller, the legal director and senior counsel at the American Humanist Association and I’ll be one of your co-hosts.
Alison Gill: Hi, I’m Alison Gill, vice president for legal and policy with American Atheists and I’ll also be one of your co-hosts.
Rebecca Markert: I’m Rebecca Markert, legal director at the Freedom From Religion Foundation and another co-host.
Liz Cavell: And I’m Liz Cavell also from the Freedom From Religion Foundation.
Monica Miller: And on today’s episode, we are going to be discussing the Shurtleff versus City of Boston case that had oral arguments in the US Supreme Court on January 18th, 2022. And this case pertains to a Christian plaintiff challenging the city of Boston’s refusal to let it put up a Christian flag or the Christian flag rather for an event called Camp Constitution. I wanna back up a little bit here and say that this case, like several of the other ones, is kind of a sleeper case in that we didn’t, you know, we have this running kind of joke now that the Supreme Court just takes any case that a Christian plaintiff is present. So we looked at this and we’re like, why did the court take it? It doesn’t present any remarkable area of law. And I say this because all of the parties agree on this central premise that when the government conveys a message of its own it’s allowed to, and actually is required to be neutral with respect to religion.
But when the government creates a forum for private speech, then it has to be viewpoint neutral, and it can’t discriminate among speakers based on what they, or have to say when it comes to matters of religion. So the question is whether one of four of Boston’s flagpoles that it has in front of its city hall constitutes government speech, in which case the government under the first amendment would be required to follow the separation of church and state mandate and not display a message that suggested endorses religion. So a Christian flag, or whether this flagpole is private speech. And therefore when Boston said that Camp Constitution could not flag a Christian flag on the Boston flagpole it was a denial of the Camp Constitution’s free speech rights. So that’s basically the question before the US Supreme Court. And one of the, just off the bat kind of egregious things that came out of the oral arguments that I wanna mention before getting a little bit more into the background of the case is that we heard one of the justices. I think it was Gorsuch if I’m correct referring to our beloved Establishment Clause, that sets off the bill of rights. It’s the cornerstone of our, our, our constitution and our bill of rights and our democracy, the separation of church and state and he referred to it as the so-called Establishment Clause or the so-called separation of church and state. And you know the Supreme Court’s job description is to uphold the constitution and it is the arbiter, the final arbiter of the Supreme law of our land. And so when you have a justice publicly, you know, kind of air quoting the first clause of our bill of rights, it’s a little just nauseating.
Liz Cavell: It does not bode well.
Rebecca Markert: But that’s also one of the reasons why our organizations were so interested in this case. I mean, on the surface, it really does look like it’s a straight up free speech case, but we knew given the parties that were involved and the rights that they were asserting, we knew that this court, this particular activist, ultra conservative Christian court, would be interested in talking about the Establishment Clause in some way. And you saw that come out in the oral arguments with Justice Gorsuch saying it’s the so-called Establishment Clause and then Justice Kavanaugh saying that the Establishment Clause has been continuously misinterpreted. And we’ll get to that a little bit later. I did want to highlight if I can, for a moment at the outset, the parties in this case. I always think it’s really important for people to understand the individuals behind the cases. In fact, that’s something that I tell our law students who come through our offices. I really want you to know about the people behind these cases, because so often, especially as lawyers and especially when this is being drawn out in the media, we really just focus on the doctrine and what the court says and what the law is going to be and it’s always really an academic type of conversation, but these cases actually affect people. People’s rights, day to day rights are being implicated when we’re having these conversations and also organizations and individuals, agendas are being pushed. And so I wanna step back and talk a little bit about the petitioners in this case. So this case, as Monica mentioned, is brought by Camp Constitution, which is an organization that is founded and run by Harold Shurtleff. They have the mission to quote, enhance understanding of our Judeo-Christian moral heritage. They try to find and train leaders in the freedom fight, and they want to quote, inspire respect for an appreciation of God, home, and country. So when I was preparing for this episode, I mentioned to you guys off air, I really got into their website and really kind of went down a rabbit hole, learning about who they are.
Monica Miller: It’s weird.
Rebecca Markert: And it’s fascinating because you think they’re Camp Constitution and they’re training young minds to know about civics. That’s what you would think when you hear, like I’m going to Camp Constitution, I’m gonna learn about the underpinnings of our government and what our constitutional rights are. But when you go into their website, that’s not all they’re about. They have a blog and here are just some of the issues that they bring up in their blog. One is about the plastic bag ban. They’re very concerned that plastic is being, you know, scolded as an enemy. And, and they’re not, it’s not really, and people shouldn’t be banning plastic bags.
Monica Miller: Like all these animals suffering, all these human suffering and they pick plastic bags. I mean, that’s the type of people that get their cases in front of the Supreme Court.
Rebecca Markert: <laugh> right. Well, some of the other things that they put up there is they have a blog on national sexuality standards. They also link to a PDF that is entitled “proof of the Illuminati,” which kind of talks about our founders and their relationship with the Illuminati. And then what was also shocking was these lawn signs. I don’t know if you guys are familiar with the lawn signs that, you know, say in this house, we believe that black lives matter, love is love, science is real. It’s interesting because that sign, if you’re familiar with it, actually was created here in Madison, Wisconsin, where FFRF is based. But anyway, they go through each statement on that sign and refute that statement in some way <laugh> and bring up like things from the Bible as to why, you know, like love is not actually love because there’s all different kinds of love and, you know, sex is not love. And so it’s really a bizarro, website organization. And of course they also have a podcast, which I discovered, and they talk a lot about the state that we’re living in currently, which they dub as COVID tyranny.
Alison Gill: Did you see the part of the website where they were talking about UN ratifying or de-ratify in the constitution to take their powers back from Congress? So it’s kind, that was really interesting.
Monica Miller: Yeah, that’s an interesting thing that came up in the oral argument was they actually protested one of the flags. It was like, it was, I think one of the Koreas, somehow Boston flew a flag and they objected to the flag that they said was now their free speech zone. And so, I think Kagan asked about it, and then they were like, you know what, this is too in the weeds for where we’re going. But it was like, you’re complaining that Boston is affiliating itself with a country that you disagree with, because you’re saying that you think that it looks like the city’s endorsing the message of the flagpole and that’s what you are saying is now not the case when you wanna fly your flag. So the hypocrisy is, it abounds constantly, but yes, there, I don’t know if there was anything else on their website that you wanted to add, Rebecca.
Rebecca Markert: No, I mean, I think it’s just, it’s an interesting place and I don’t wanna drive a lot of traffic to their website, but it is kind of an interesting place to land if you want to see what they’re up to. The other thing that I wanted to talk about was the attorney who’s representing this organization that’s an attorney named Matt Staver and people probably know him. He’s very familiar to our groups we go up against him quite a lot. He runs an organization called Liberty Council. Liberty Council is a Christian ministry, but they have a very active, large legal department. And at some point during their founding, Matt Staver mentioned that Liberty Council was going to be the Christian antithesis of the ACLU, like that’s their point. They’re going up against the, ACLU and now our organizations as well. He’s a lawyer, he’s a former pastor. He was the former Dean of Liberty University. And he’s certainly no stranger to the US Supreme Court. In fact, he was the attorney who argued the 10 Commandments case out of Kentucky, McCreary County. So we’re very familiar with him here at FFRF. I’m sure you guys are as well. He represented a school district that we sued in Virginia, also over a 10 Commandments display, but Liberty Council is this organization that they focus on a lot of different things. Religious freedom is a huge pillar of their ministry, they say. And so is the sanctity of life. And then also family, meaning they’re really focused on marriage being between one man and one woman. And also recently they’re really focused on the COVID vaccine mandates. I think I get an email every day from them talking about how awful these mandates are, and they’re actually representing a Navy Seal against the Biden administration over mandates in the military. So I just really wanted to highlight who’s behind this particular case.
Monica Miller: Thank you for doing that. I think it’s definitely having that information because these are the familiar faces and these are the faces that probably get the cases before the Supreme Court you know, the Shurtleff and this Camp Constitution, we’re not big players before. You know, this is a weird kind of obscure group. The only question is, is this government speech or private speech? The ACLU actually switched sides. We filed Amicus briefs, different of our groups. And once they found out, I think about a little bit more about the record demonstrating that there might have been a public forum. Also we have the US government, the US government got to give oral arguments in this case, but I do think it’s important to point out the US government’s role here on the side of Camp Constitution, the Biden administration. Clearly they’re not saying we support Camp Constitution. What they’re saying is that you don’t need to, you don’t need to make a big mountain out of a molehill. That’s my take is that they’re like, look, just, just rule on this free speech issue. Like there’s not, you know, sort of to balance the scales. But it kind of surprised me that they would get involved at all.
Liz Cavell: I honestly feel like they’re in this case, it’s really interesting and we can dig into this. There’s like the, on the level version of like the review of this case and then there’s like the activist. Like string pulling level, you know, and like the US government and the ACLU decided to kind of approach this as on the level. And I think we all can tell from oral arguments and also just the court’s decision, right? The, every, like literally everywhere you look, every fact that you see, but also the court’s decision to even take this case, I think shows that there’s kind of another agenda at play here. It’s not just, you know, an on the level dispute that, you know, somehow got decided wrongly or that, you know, there’s circuit conflict between. I mean, I think there’s kind of two things going on.
Liz Cavell: And the activist level, like we talked about, Monica kind of started out right in the beginning saying like, here we have another persecuted Christian plaintiff. And what do you know? The Supreme Court was very eager to scoop this case up because it’s a pretty unremarkable, is this a public forum for private speech or is this the city of Boston speaking its own message through its flagpole that comes up all the time and there are a lot of cases on point telling courts how to handle those situations. The special thing in this case is that it was, the Christian flag that was you know, censored, quote unquote, in this case. So I think that is the real driving force behind what’s going on here and what the court wants to say and what the parties want to push the law in the direction of kind of like we were talking about last week.
Monica Miller: Yeah. Yeah.
Rebecca Markert: I also think though that the Biden administration isn’t completely deaf to what’s going on at the court, they’re taking a lot of these culture war type cases and they have found themselves on the "so-called" that’s the word of the day, <laugh> the so-called, you know, progressive left side of a lot of these cases. And they also are mindful of the fact that we’re going to be going into an election cycle for the president here shortly and I think that this gave them an opportunity to jump into the culture war and come out, looking like, Hey, you know what, we’re not completely anti-Christian here. And because we all know here on the podcast and a lot of our listeners probably know that, you know, it is important for elected officials, especially people who are running for government to make sure that they let Christians know that they are religious and supportive of religious people. And so I do think there’s a little bit of underpinning of looking forward to the election and how they’ve been working on these cases that have been really highly publicized and highly emotional for a lot of the general public. I think they are very in tune with that and they really wanted to at least find one case, and this is to sort of show that they are not anti-religion and they are supportive of Christians in this country.
Alison Gill: Have to say I’m skeptical. <laugh> do you really think the general public pays enough attention to the Supreme Court and individual positions that Biden administration takes in it? I’m skeptical. Maybe that’s the reason
Monica Miller: I wish there was something to balance the scales. Like I think that there’s something to be said about having ACLU and the government, the US government on that side, and then have all of us on this side, like yeah. It makes it kind of confuses the court, like who, well, you know–
Alison Gill: I think it has to do with–
Monica Miller: The ACLU I mean, clearly they’re gonna rule with the Christian plaintiffs and that’s okay. It’s okay and it isn’t. Because, you know, I’ll get it into sort of the facts and the consequences, but like, there would be the reality is if Boston was required to fly the flag of the Christian flag, if there was injunctive relief here, if the, if the consequence was that Boston at the end of the day has to now put up a Christian flag in front of city hall, we would be really concerned, but we know Boston’s not gonna have to do that because they can change their policy, they can close the forum. We can get into sort of those consequences. So that’s why we’re not saying, oh my God, oh my God, oh my God. But like at the same time, that’s effectively what the Supreme Court is slated to be ruling is that a flagpole in this context is not government speech. This fourth flagpole. And so a lot of the questions during oral argument pertain to does, can Boston, you know, put up a KKK sign would they be forced to, how could one not associate a KKK flag in front of a city hall as being any message associated with the go with anyone other than the government it’s front of the government’s building. So, you know, like that, that is kind of why I think the, the us government could join the other side though is to say that because we know that Boston won’t ultimately have to do that, cuz they could just say these are all our flagpoles and we’re not gonna put up any third party flags then, you know, like it’s, it is just an easier case I think for them to join.
Liz Cavell: But also like the on the level version is kind of where we all would normally find ourselves agreeing with the side of broader free speech, right? If we were really analyzing a true, a truly confusing public forum situation, is it or isn’t it. And did they really have an ambiguous policy that, you know, ended up giving too much power over censorship to the city of Boston and did that result in chilling free speech? You know, we would all sort of be on the side of expansive free speech and making sure the government is complying with all of those free speech requirements that have been laid out through the years when they create a forum. And there seems to be some confusion over whether or not, you know, and how third parties applied or applied to the city of Boston to get their flags flown. And so, okay, that’s on the level, but, but what’s gonna come out of the other side of the meat grinder of the Supreme Court is going to be something that is not on the level. It’s going to be something that probably, and this might be a good segue, chastises the City of Boston for being overly concerned about the Establishment Clause and overly persecutory of Christians. That is not on the level. And that is why there’s a way to just be in the, on the side of expansive free speech and on the side of limiting government power over censorship and the US and the ACLU you know, kind of jumped on that side.
Monica Miller: Well, thank you, Liz, that I think that actually really brings us into sort of the more nuanced facts here, which is like we had from 2005 to 2017, Boston approved about 284 applications. So they have four flags and they normally have like their, like the government flags up and they have this other flagpole. It’s a third flagpole that they sometimes allow for these third party applications. So in this large chunk of time, they had 284 applications, uh, before rebuffing Camp Constitutions and the vast majority of those flags were from foreign countries. They flew like, let’s see, it was, I think there was like it basically they all were somehow con most of them had to be in connection with state and national holidays or days of commemoration. So during the oral argument, they were saying that if Camp Constitution had submitted, uh, an application that said for constitution day, and it’s a constitution day flag, they wouldn’t have disapproved it, it wasn’t the identity, it wasn’t that it’s a Christian group proposing. It’s that they wanted to fly a flag with a cross on it, right. It is a blue flag with a cross on it, it’s called the Christian flag and so they said we can’t do that. There is a US Supreme Court case among other things, uh, at the time Allegheny where Justice Kennedy had said, and, and the majority agreed that even if we were to allow a, this was the Allegheny case, even if we were to allow a nativity scene to be up for a month on city hall, Justice Kennedy said, it would be really different if it was a cross on city hall, because, because that would link the government with this permanent religious symbol for so long, you know, like there was there’s case law about crosses and associating the government. And so, Boston said we can’t put up this Christian flag. And so Camp Constitution sues and says, you’ve created this, this public forum for all these other flags. They had also flown, I guess an LGBT pride flag so they were trying to, to pull that one out and say, well, that’s, that’s sort of in this religious vein, but pride day is sort of a day of commemoration. So there was, there’s sort of these factual disputes and that’s why, you know, if, if as Rebecca and and Liz were saying, if we were, if this was a different situation, we would be on the side of free speech, because if we really felt that that even if this was a Christian group that got discriminated against, if there was truly a public forum, but we’re talking about a flagpole in front of city hall and all these events prior there too had been foreign flags. They had talked about, there was a bet with Canada one time where they lost like a hockey game or something, and they had to fly Canada flag. It was all kind of just like this cutesy thing. And I mean, not cutesy, but it made sense for the, for the nature of the flagpole.
Liz Cavell: Right, other commemorative things.
Monica Miller: Exactly, and so that brings the public forum doctrine of free speech land. So there’s basically sort of several types of forums that the government creates, whether by intention or by happenstance and then once that is triggered, all these free speech rules apply when it’s not triggered, we call that a non-public forum, government speech, and that’s when the government gets to control its own message. So if it never had these third party flags and it always just flew Boston flags and you know, the government flags and this Camp Constitution comes along and they said, we wanna fly our flag and Boston says, hell no, well, that’s perfectly fine. They’ve never allowed anyone to fly another flag out there. So that’s, that’s the non-public forum. Then we’ve got, what’s called the limited or designated public forum. And in those cases, the government does intend to create some venue for private speech, but it’s circumscribed and it’s allowed to be circumscribed it’s called time, place, or manner restrictions in legal parlance. This area might still trigger intermediate scrutiny or strict scrutiny. There’s some sort of there’s sometimes are debates within this designated public forum what level of scrutiny gets applied when it’s religious speech, but for purposes, just realize that there’s more latitude in the government with time, place and manner. They still can’t engage in viewpoint discrimination once there’s a, once there is a public forum at all, meaning they can’t say no to Christians and yes to atheists or yes to Muslims and no to Jews, but they could say at one point they could say no religious speech. That’s kind of being altered now in a big way, but that was the, that was that then there’s a traditional public forum, which is like parks and you know, places that are historically meant for, you know, streets and sidewalks historically meant for demonstration and, and public speech and not the government gets strict scrutiny if they try to curb speech in those areas.
Monica Miller: So again, so here, we’ve got a situation where they’re arguing that this is a designated or limited public forum, but they’re also arguing that it doesn’t matter what kind of form it is because they’re saying this was viewpoint discrimination because it said a Christian flag. And so that was sort of what was coming out of the oral argument. There’s also the government speech doctrine. And that asks like, is the government really the player here? So once, so once we’ve set aside, like maybe the form isn’t dispositive, there’s also this government speech doctrine and that looks to three variables and that is control, like who controls the message if it’s like an open mic night that the lawyer for, I think Boston was, or the us government’s lawyer was, was, was making the analogy between open mic night and a symposium, a symposium, the government orchestrates, or the organizer organizes and it’s the message of, of the symposium. But when it’s an open mic night, it’s kind of anyone’s game and you don’t associate the message. We see this come up in our school prayer type of cases, graduation prayers, when the government creates they’ll, our opponents will argue, the government creates a private forum for private speech and that student prayers like government events are private speech. So we see it come up in that context, but in this context, it’s control the history of how the forum was used and then what a reasonable observer would perceive the thing to be. And so that’s where you get the Establishment Clause and the separation from church and state the most strong, because like we said, when you stand back, if you’re just a driver, I show up in Boston, I go to city hall that day, one day out of the year and I see the Christian flag displayed next to the POW flag and the US flag I’m thinking, did I, am I in the United States? I thought there was a separation between church and state. So the, so even when you take control and history aside, I think Kegan or Sotomayor was asking this line of questioning was it’s a flagpole. How do you associate, you know, in front of city hall as a city hall flagpole, how do, how does a reasonable observer see anything but, you know, again, what if this was a KKK flag? What if this was a swastika? How would that be? Okay. I don’t know if you guys had any reactions to those questions or how deep you sort of feel like this might interfere with our student prayer line of cases, school prayer cases, but I’m gravely concerned for bad dicta to creep into that area.
Liz Cavell: Yeah. I mean, it’s this idea that you were just describing and where it’s not all that complicated in terms of how much can governments regulate our speech as citizens. And it’s kind of just this sliding scale of government power, like on the public sidewalk and in public parks, government power is kind of at its smallest to regulate our speech and you kind of slide the scale. Literally the other side of that scale is where we are, which is city hall. You know? You have to think the flagpole in front of city hall or the lawn in front of city hall, the top of the building, whatever we’re talking about, that would be where you would think the city government’s power to regulate speech is at its absolute, you know, pinnacle because the, any reasonable person viewing what is displayed on city hall is going to associate that message with the city or view it as the city’s speech or the city saying something on that topic.
Liz Cavell: And I’m never gonna abandon my on the level off the level metaphor situation. But like the, the off the level version of this is trying to somehow say or confuse convince the justices. Well, they don’t need convincing, but convince the public that somehow all this treating religion differently than the government speaking on all these other topics is some mistaken interpretation of the constitution, right? Like if the government it’s kind of like we were talking about on our last episode where we were saying these arguments, because they’re not on the level, they’re trying to conflate religious views, like secular versions of values with just the flip side of religious views. So your secular view is correct a religious view because I have the opposite, like value in my religion. And it’s the same thing here. It’s kind of like, well, you flew the LGBTQ pride flag. And so, Christian fringe group thinks LGBTQ people are abominable and so we should be able to fly our flag. It’s like, no, your thing is a religious flag.
Liz Cavell: There’s a constitutional separation, Gorsuch be damned. Like there is a constitutional separation between church and state. There is not a constitutional separation between like gay people and state or view values related to like kindness and acceptance and state, just because your religion speaks on those values, doesn’t confuse the issue so much that we should throw out the whole amendment. And that is where, like, sadly the opinion will be some weird bastardization of all of this, that kind of makes that, or leads to that inevitable conclusion. But it really just doesn’t make sense when you think through, it’s pretty simple, the constitution says X, Y, and Z. That’s why we’re reacting this way when the flag is religious and not acting this way when the flag is these other things that are not a religious viewpoint. So I just hate seeing all this, you know, fake controversy over viewpoint discrimination when it’s pretty clear why religion is treated differently when we’re talking about what’s on top of city hall.
Monica Miller: Correct. And in fact, you know, to sort of go back to this hypocrisy, and I mentioned at the outset, this Pleasant Grove City versus Summum case, it was a more, I think 2009 case. But that involved, like in that case, the, the government, there was a public park, I think in Utah. And they had a 10 Commandments in the public park and then minority religion wants to come along and display their, their monument and the question was whether a public form had been created by the acceptance of this 10 Commandments monument in an area that was way more of like a park, like a, it was actual public park where the message would be less associated with the government than on a city hall. And yet the United States Supreme Court, not that terribly long ago said that, that even though it was a private, it was a public park and they already accepted a 10 Commandments monument. Talk about viewpoint discrimination. They, that another religious monument was not allowed. So like, if you would flipped those parties around, clearly it would’ve been, oh my gosh, you persecuted the Christians, you just, you couldn’t let that, you already let this one monument in, like you have to let theirs in. So, we see such a leap. And like I said before, it used to be with content with content based restrictions and those sort of Rosenburger Whitmore line of cases. There was a Whitmar line of cases. There was this, again, we kind of talk about the play between the joints, but there’s this area where in non-public form land where you can’t exclude religious players, just because they’re religious. So in the, in the Rosenberger kind of cases, Whitmar they involved like student club groups at colleges and Christian student club groups being able to use, like, whether, whether a forum was created for like, if there was like a school newspaper or a fund for student groups, whether if like those SBA funds had to go to a Christian club, if they formed.
And the answer was, yeah. When you form a forum for all these different groups, and we’ve gotten to use that line of reasoning to allow and expand for humanists imprisonments. And so this, again, like we had, we don’t have the biggest problem when you say yes, there’s a real public forum, you can’t exclude the Christians, but we’re talking about something altogether different here. We’re saying there used to be something called the defense of the Establishment Clause, where, when you said as the government, no, we don’t wanna put this up. There was a lot of cases, even in the 11th Circuit Court of Appeal, where we know is, is quite hostile to atheists that said, you can go beyond the, the Establishment Clause, you just because the Establishment Clause doesn’t outright pivot something, the government can safely rely on it to, to make sure that it is neutral.
It is duty first and foremost to be religiously neutral. And secondly, to care about the free speech that is baked into several cases, including the Supreme Court case, Santa Fe versus Doe, which is our kind of school prayer case that said student-led student initiated prayers at football games were unconstitutional. Even if the government might have created a public forum for student speech, because the prayers would be stamped with the school seal of approval, because the prayers would be given at a public school football game, there’s cheerleaders in uniforms. They’re all saying the school’s, you know, name, the principal might be there. Like the aura is school, even if it’s the student’s message and the student came up with it, it’s going to be, as they said, stamped with the school’s seal of approval. How could that not apply here? And the only difference is we’ve got a very different Supreme Court that was back when we had Justice Kennedy as the, like the swing vote, you know, conservative person.
Alison Gill: Monica, I really think you put your finger on it. You know, this is the point they’re masking. I mean, this really should be about an application of the Establishment Clause they’re masking that with this very technical question about government’s speech and people fall on both sides of that, right? And so that’s, it’s sort of is ignoring the fact about the Establishment Clause here. So let’s ask the question if this were, you know, if this were definitely a forum, like a, a public forum and would ever all of us be okay with flying the Christian flag in that instance? I think we would say maybe not because there’s endorsement. I mean, it looks like it’s being, you know, so yeah, that, that part is just being ignored here, right? And that’s just the major issue,
Monica Miller: Justice Alito asked Boston, you know, Boston’s lawyer, like does, does Boston support every national flag that it puts up when it puts up that, that third party flag and you know to rebut the idea that like, that those are all the government’s message. Cause that’s what it’s saying. When it’s saying we put this up and they’re like, we don’t have to agree with it for it to be still our message. Like we could be saying that we support the inner, the refugees, cuz they were like, he was saying like, what about from, picked some country that, you know, he felt like would be something Boston wouldn’t support. And, and they were saying, well, we have refugees from that country. Like maybe we would be putting up their flag in honor of the refugees. So again, the point being is that they want to maintain this control and their, no one in this, no one in that courtroom said was, would think that Boston would be forced to fly the Swastika if that was the case.
Alison Gill: Oh, I don’t know. I mean, Staver was asked that and he said, do we have to fly discriminatory flags if they said it had a policy that said nothing discriminatory. And he said, no, I think they do have to fly, you know, a discriminatory flag. So I don’t know if that’s true, is it?
Monica Miller: Well, I think, I think that they, I, I was getting the impression that no, that they all felt that there were certain limits that still could be imposed, but that this was still one of those viewpoint discrimination things. So I think that they were, I think there was agreement that they could make a no terrorist, a no terrorist, like they could create a time place and manner restriction like that. Like I forgot how they said it in the transcript, but it was, you know, like no terrorist countries or something. Like, I think that would be reasonable, but like, of course, like to me that opens up a bigger can of worms than this. When you talk about like, cuz what they don’t wanna do is give government officials unbridled discretion to pick and choose which speakers they like and which ones they don’t. And so that was sort of what the question was here was this was this like this, you know, we don’t like your viewpoint or was this, this doesn’t even qualify for our type of forum.
Rebecca Markert: But I think that’s also what we have to get back to is that these are flagpoles. I mean, I don’t think that there’s anything that isn’t so intimately related to the government, other than a flagpole, you know, it’s not like these other traditional public forums where, you know, it’s a public park or a public sidewalk and people are gathering and carrying the Christian flag or having a rally in a park, a flagpole at city hall is just one of those areas that is just so closely related to the government that it’s impossible to sort of separate out that message no matter what’s happening for a flag raising ceremony or an event that’s happening on the ground there. And I think that’s another really interesting fact about this case is that really, there’s not a lot of cities that allow something like this. There’s not a lot of places where you can just request to fly a flag. And that was brought out in the oral arguments too. I mean, it’s just not a common ubiquitous type of practice. The only thing I could think of was I used to work at the capital and they would, you could send in a flag request where they’d throw up the American flag for like a second above the US capital and then you’d get a certificate. But really, I don’t know of any other cities or towns or governments that allow this sort of thing like anybody can request to put up a flag.
Liz Cavell: And it feels like Boston in this case is kind of rejecting that characterization of what it’s doing, right? They’re like, yes, we also do not allow anyone to fly a flag in front of our city hall. This is being mischaracterized as some free for all. And it’s 284 yeses and one no. And what do you know? It’s the Christians, we, the persecuted it’s like, no, no, this, everything has been very confined in terms of–
Monica Miller: It’s fitting into a bubble of, of appropriate.
Liz Cavell: Right. This is a really cabined practice that only really comes up because every day is some sort of commemorative day and we allow for these commemorative flags to fly and that’s it.
Alison Gill: Yeah. Well for now, right? Because if this does come out the opposite way for the Camp Constitution, like what stops every single town in the south who wants to fly a Christian flag from creating a public forum and doing so.
Liz Cavell: Or a Confederate flag.
Alison Gill: Yeah.
Monica Miller: That’s my concern is the implications for the south because we all, like it came out in the world like Breyer was, was asking this like, why not settle? Like if we all agree, this is a public forum, let’s just assume it’s a public forum, why not even settle this? Why not just settle because Boston can just turn around and say, we’re not gonna do this like every other country or every other county. And you know, this is such a rare practice. So they’ll probably do that or they’ll make it like, you know, they’ll I think the US, even during the oral argument proposed a policy or in their brief and Boston said, we’d be fine just adopting what the US policy, what the US just said, like we could do that. No problem. Yeah, so it’s definitely like the concern being that does this open up, does this give, does this even does this now ignite and create like this idea of spreading Christian flags everywhere? Because I, and having governments now, like, oh, we didn’t think that we should do that. We should now like once they do that, they can’t, you know, welcome the Christian flag and then turn around and say no to the humanist flag. So there is a little bit of a, there’s a benefit, but we know that there’s not humanists and Satanists in every town in the Bible Belt.
Liz Cavell: And you wonder like part of me is like, why Boston? Why did you let this get this far? Like, you have ultimate power. But then there’s another part of me again, which is just like put yourself in their shoes where they’re like, no dammit, we are not gonna go along with this characterization of what we’re doing and do this, you know, not on the level, like negotiation around what we’re doing because it, it is okay for our government speech to commemorate LGBTQ pride day. Like it is, you know what I mean? Like they, there’s a defensiveness that can drive you through years of litigation when you really just don’t wanna buy into the other side’s characterization of what it is you’re doing. And I kind of get that, but you’re right that they could just fly the Boston, the Massachusetts flag, the American flag and the Boston flag and call it a day and that’s it for all time. You kind of get why they’re trying to defend what they’re doing, but at the same time as I’ve covered, we are not on the level.
Monica Miller: Cause it, you know, it used to be that you could write a policy that just says we’ll accept, you know, all, all foreign flags and all, you know, commemorative US holidays, like national holidays, like that would be allowed when you say commemorative events, that’s when it starts to open up. But you know–
Liz Cavell: Right. And this is where like, I don’t want to ignore and I’m so glad Rebecca kind of opened with this, who’s driving this and we kind of, we’re talking about the technical outcome and the court is gonna do some, you know, this is the Trojan horse by which this decision will come out. You know, there’s some sort of technical problem with the way Boston is doing, managing or administering a public forum. But the reality is this group Camp Constitution wanted itself to be the commemorative or sorry, wanted the Christian flag to be the commemorative flag on Constitution Day to put forth its narrative that our country was founded as a Christian nation. Our constitutional values are Christian or Judeo-Christian, as they say. And that is something that is a really toxic and fringe belief in this group. I mean, we joked about like some of their blogs, but they are a fringe group of conservative Christians who have kind of co-opted the Christian flag to represent this really radical Christian nationalist viewpoint of the US Constitution and American history. And so that is not to be forgotten I think in watching how the court analyzes the facts and applies the facts to the law in this case.
Rebecca Markert: Well, and also just how the flag, the, the symbol of the flag has changed. I mean, they made this request in 2017. A lot of things have happened since 2017. A lot of things have changed since 2017, including the federal makeup of the federal bench. But also this is the same flag that was used on January 6th at the insurrection and that wasn’t their intent when they made the request of course, but I, I don’t think that people can turn to blind eye to the fact that yes, this flag, this is the flag that Christian nationalists are using for their narrative and their message and it was the flag that was paraded onto the floor of the US Senate when they were trying to stage an insurrection.
Liz Cavell: Right.
Monica Miller: It’s definitely like, I think they, the Christian flag, wasn’t something that I think a lot of Christians are even familiar with. I actually listened to Holly Hollman’s talk a little bit about this case with the BJC, the Baptist Joint Committee, I think they were even like, what’s this Christian flag. So it’s definitely being used for, by a specific group of people for a specific message. It’s not like all Christian support this Christian nationalist message, but you’re right. It’s not being flown by all Christians, it’s this specific nationalist insurrection type.
Rebecca Markert: Well, and in that podcast, by the Baptist Joint Committee, they talked about the history of the Christian flag and how it came about in the 1940s and how there are specific uses for the Christian flag and one of the parameters of use is that it cannot go above the American flag, but it is true I don’t think there are a lot of people who know that there was a Christian flag. Before I started working at FFRF I had no idea that there was a Christian flag and I am a product of a Catholic school. So I was just like, what, what is this Christian flag? I’ve never heard of that?
Rebecca Markert: And then even now, even after, you know, having our organizations write an amicus brief for this case I’m still learning things about the Christian flag. In fact, one of my friends is in Boston and the day after oral arguments, she sent me a message. And she said, do you know about this case? And so we talked a little bit about it. And then she said, I used to pledge allegiance to that flag vacation Bible school. And I was like, I had no idea that there was a pledge of allegiance to the Christian flag. And she said, oh yeah. And she rattled it off and I had no idea <laugh>.
Monica Miller: My friend in Boston was like, what, what is this case? And I was like, you know, they’re, they’re gonna try to fly the Christian flag over your city hall. But yeah, it’s, it definitely like flew under people’s radar but when I told them about it, they had a really strong opinion that they didn’t want the Christian flag there. But yeah, it’s, and I mean, that’s the thing too, is like, these are, this is Boston, like wanting to, to do the Boston thing and you’ve got this, like you said, this outside group, like the off the level kind of thing, but like, this is it, it they’re forcing a city and like this they’re like, no, we don’t wanna be forced to do this. Yeah, there is a defensiveness there that I think is completely appropriate. And I think, why, why not defend what you wanna continue being able to do.
Liz Cavell: Right. And there’s like this, this is so rampant in our, in what our kind of parties have devolved into. And plus what religious conservatism and versus progressive, oh, excuse me religiousness has, you know, everything has become more polarized, both the political and the social and the cultural and the religious. And I think there’s this notion and so many of those on the polar conservative and it in all of the above now sit on our United States Supreme Court and what’s happening is there’s this there’s this at that end of the poll, is this insistence that the truth and reality is like malleable and the people on the other end of that poll are like, no, I do not wanna accept that everything is both sides and everything is malleable. You know, I don’t wanna accept that, that a flag, a rainbow flag commemorates LGBTQ pride day and that is the same as a Christian flag commemorates Constitution Day. Cause that’s, you know, cuz my opinion is that, and your opinion is a rainbow flag commemorates LGBTQ pride flag day or pride day. And like those two things are equally true, you know? Like my Christian nationalism is just true.
Monica Miller: LGBTQ pride day. Like they see–
Liz Cavell: Right. And it just like it’s, if you’re on, if you’re where we’re at, just in our minds and our beliefs and our values and the way we view the law and jurisprudence and the way these things are supposed to happen, it’s really a hard pill to swallow that like, you know, you should just throw up your hands and do the easy thing and just close the forum and not fight these cases and battles anymore because you don’t want to accept the other sides just total like Alice in Wonderland of reality where you have to pretend that, you know, Boston’s doing something wrong by treating religious speech differently in this way.
Monica Miller: Yes, you’re right. No, there’s a victimization of that. And I think with the government and ACLU going on the side of you know, Camp Constitution, I’m sure Boston, it, it kind of like, yeah, you’re right. It makes them feel like they’re, they’ve done something wrong like the government’s against them, you know, us government. And it’s like, they just wanted to be able to celebrate some holidays and some foreign flags and like have some jokes with Canada and you know, Boston historically has had some free speech cases where they were a bad guy. They, I think there was this, oh my gosh, this is like law school days. But like there was the one where they, they I feel like they refused to like allow a gay pride parade or something, or they allowed some parade and whatever it was, Boston has not always been a progressive, you know, like pride city.
Alison Gill: It was the Boston St. Patrick’s state parade I believe you’re talking about. And that was, I believe part of the problem is that it was also private.
Monica Miller: Right. And yes, there was a genuine joint free speech issue there. I mean, there was definitely more of a, it was definitely more of a case, a case or controversy than this one. This is, this is like, what? This is everything, but a case or controversy. Right. I mean, seriously, like what have we spent this time? We, we barely care about the case, the facts. I mean, the facts are kind of like 200. We, the facts are important, but there it’s like, this is just this case is literally everything, but a case–
Alison Gill: We’re litigating subtext, right? I mean, that’s what we’re doing.
Monica Miller: Outcome. The outcome. One, one is kind of predetermined. We know that Christians are gonna win, but secondly, we know Boston’s not gonna have to fly the flag. They’ll recreate a policy, whatever.
Alison Gill: Well, I have a question about that, Monica, what if, I mean, okay, so let’s say it is a public forum and let’s say, okay, Boston says, we’re now gonna close this public forum and Camp Constitution says, well, you’re closing it in response to us, a Christian group, asking to close a public forum, you to use it. And now you’re closing it and that’s hostility. Right? That’s hostility. You know, I don’t know I’m curious about that now that happens to atheist groups an awful lot. Like we wanna, you know, put up a place, join a public forum with a, with a monument or, and you know, we’re told it’s no longer a public forum. I’m curious how that plays out and it the gets the future question.
Monica Miller: It’s a good question. And it was definitely asked in the oral argument. And I think, I mean, I think that the law, I think the laws that they don’t have to create the forum, I think they all agreed that Boston, I think the premise was that Boston could at the end of the day. And I think the reason, I think the reason why Boston’s allowed to start from scratch and just say, we can close the form is cuz they haven’t really, they haven’t allowed. I think it’s that they probably haven’t engaged in already viewpoint discrimination, but you know, I don’t know. I think in our cases it would be the same thing, they could close the forums. Like say with one of my prisoner cases, if I was like, no, you have to let the humanists, you have to recognize humanists if you recognize, Odinists and Druids and all these other obscure religions in your prison. And if, you know, if they ended up closing the entire religious services program to exclude humanists, I kind of would be like, well, good. You know, like less prison, but like I, you know, I dunno.
Liz Cavell: We take it on the chin and that, but that might give that special context might give rise to some free exercise problems for sure because people are incarcerated. But I think in general, it’s not been controversial that the government has the power, especially at the seed of government at city hall restrict all private speech in that way. It has to be, I do think I’m sure we will hear some, at least dicta in some concurrences somewhere about all the potential hostility that could flow from first, you know, whatever happens in this case or how Boston chooses to react. So, I’m sure there will be a feature of someone’s opinion.
Monica Miller: It is still like, you know, they talked about in the oral argument, why didn’t you settle? Why didn’t you settle? And again, we talked about this in the last episode about the hypocrisy of standing alone. This was an atheist plaintiff, like, or there was nothing left to litigate or could be easily settled, they just wouldn’t take it. So, you know, I think just like across the board, we just are faced here with a case where it’s pure preferential treatment under the guise of discrimination.
Liz Cavell: I have to laugh so much at the justices asking why didn’t you settle this case? But you know what I mean, where it’s like, if you think this case is so ripe for obvious settlement, why did you grant cert on this case? That is a bizarre state of affairs.
Rebecca Markert: I also think it’s funny too, because you know, we were talking about the policy and what that they’ve closed the forum, but they’ve already changed the policy from what it was in 2017 during the course of litigation and it, it came out in oral argument that the justices didn’t even know which policy we were arguing. They kept saying, you know, like, well, isn’t that the 2017 policy is that the 2018 policy. And there were several instances where the justices were like, what are we even ruling on?
Monica Miller: Yeah, I know I, this is not what, this is not what the Supreme Court is supposed to be for. It’s not supposed to be like public pontificating. Like this is, this is an advisory opinion. I mean, really it is.
Liz Cavell: Right. That’s where you see again, we’ll be complaining about this. Like in every episode, just the absolute, just lack of concern around standing in these cases where they really favor a particular factual setup, you know? Oh, the, the person that was censored was Christian or the thing that was the speech that was censored was Christian. You know, it’s Boston, it’s a nice Yankee villain.
Monica Miller: Yeah. So what do we think the outcome will be? Do we think this is gonna be, you know, unanimous? Do we think it’s gonna be–
Liz Cavell: There’s part of me that’s dreading kind of how we talked about why is the US kinda weighing in, in this way? There’s part of me that thinks the court likes to look for these chances to show this, you know, that it’s not a totally compromised institution and not have a five, four split. And so this case, I think, has the potential, depending on how, whether or not they can coalesce around an opinion, that’s not, you know, the Establishment Clause doesn’t exist. Yeah. So you all messed up. So I think there’s potential there. I think for them for the conservative group of whatever four people wanted to take this case to kind of pick off some of the others’ justices to, to really, to do the foe, but on the level version of a free speech finding for the plaintiff in this case. Yeah. So I think that’s my kind of best, worst case scenario.
Rebecca Markert: I can definitely see a 9-0 majority opinion on the free speech issue. I see, I can kind of imagine that they say that yes, the policy, when they applied for the flag request was a public forum and the city of Boston was wrong to deny them. But I also see a 9-0 opinion on that majority, but then several concurring opinions that talk about the Establishment Clause, that refine government speech in some way, there’s gonna be a lot of dicta that’s going to be written in this case.
Liz Cavell: And five concurrences that say, this is the worst hostility we’ve ever seen towards, you know, religion or something. You know, a lot of really bad language.
Monica Miller: I have to laugh cuz it reminds me of the case that Rebecca and I litigated together in Pensacola in the 11th circuit but we had this newly appointed Trump judge who, who had ruled in our favor, but then concurred, because he had to cuz the case law was in our favor. And then, but like concurred to say that he would disagree with himself, like had, it was like, and the concurrence was like 30 pages. The opinion was like eight and the concurrence was, or like he dissent, like I don’t even, I don’t even think you can do that. You can’t be two justices. Like one judge, one vote. What are you doing?
Liz Cavell: Well, it was like, it was like, this is the law I’m bound by but here’s my, my personal fiat.
Monica Miller: Yeah. My dissertation on how much I hate the Establishment Clause.
Liz Cavell: Totally.
Alison Gill: Sounds like an advisory opinion to me, I don’t know.
Monica Miller: Think we’re gonna basically see that same dissertation five times by these other justices. We’re gonna get Amy’s iteration of why the so-called Establishment Clause. Maybe we won’t, Amy might join one, but like I feel like definitely it’s not the Establishment Clause is not gonna come out unscathed and our opponents will take those tidbits and run with them in our cases.
Rebecca Markert: Yeah. I think Justice Barrett’s gonna go the government speech route. I think she really wants to refine what that means. And that there’s still opportunity even with the government speech doctrine to talk about whether the Establishment Clause is a, is a good defense.
Alison Gill: I’m concerned we might see them push on the idea of hybrid speech like religious speech because it’s, it has multiple protections from multiple amendments based and multiple, you know, aspects of the First Amendment being more worthy of protection or higher levels of protection because that might relate to the case that will be seeing this next term, which is the Bremerton case. So that would be very worrisome if that starts to come up into the concurrences.
Monica Miller: Well, Alison, I mean, you’re totally right. I feel like we’re seeing it happen, which is the flipping on its head of what once was the Establishment Clause of defense that governments could use it with with wide latitude, because we don’t wanna give the misimpression we endorse religion is now like you’re gonna have the, it’s gonna be a presumption that you have to let the religious speech in because of saying what you were saying Alison.
Liz Cavell: You’re so right, Alison, that is the, that’s the like D-Day scenario where it’s just like the, the full fledged inversion of the First Amendment where it’s like, forget the Establishment Clause concerns. You are doubly violating their rights because you got speech and you got religion. You know what I mean? It’s like, that’s what the First Amendment is kind of contracting on the Establishment Clause side to the point of non-existence.
Alison Gill: And we know that some of the justices have actually written on points like that when they were Circuit Court judges. I don’t recall who offhand, but maybe it was Alito or Kavanuagh.
Monica Miller: The so-called Establishment Clause. It’s the so-called? They don’t, we have justices that don’t like the first all aspects of the First Amendment. We can safely say I support free speech. I support free exercise. Like those aren’t I don’t say so-called free exercise.
Liz Cavell: <laugh>
Monica Miller: Like you even called it out, Liz, you were like, well, you know, in the prison context it’s like, yeah, no, you’re right. Like there is genuine free exercise rights and in the free, you know, in prison context that we would, we would stand up for. So, oh man, our priorities in the country. Well I guess that sort of wraps up this segment.
Rebecca Markert: That does conclude our episode for today.
We Dissent is a joint production of the Freedom From Religion Foundation, American Atheists, and the American Humanist Association. It is hosted by Liz Cavell, Alison Gill, Monica Miller, and me, Rebecca Markert. Other production support comes from James Phetteplace and Greta Martens. Audio engineering is provided by Audio for the Arts in Madison, Wisconsin. Thanks for listening.
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