Say what you will about the current Supreme Court, and many critics are never satisfied, but the Roberts Court has been very concerned with religious freedom. The judges provided another bell-ringer on Monday in the 9-0 decision.
Hundreds of times, the city of Boston has let private groups fly their flags for several hours in the square outside City Hall. It denied the zero request until it denied an applicant a request to fly a Christian flag with a cross. The U.S. Court of Appeals for the 1st Circuit dismissed its denial, saying that Boston “engaged in government speech when it raised a third-party flag” and raised a Christian banner that “may signal the City’s acceptance of that religion”.
That argument convinced 0 Judges, for good reason. The city has allowed its flagpole to fly the gay pride flag, the Ethiopian flag, and the Metro Credit Union flag. If that’s the entire government speech, what message is Boston supposed to send?
The majority opinion in the case, Shurtleff sues Boston, speaking for six Judges, three liberals and three conservatives. Justice Stephen Breyer majority wrote that Boston had no specific policy on what flags were allowed, and in fact it did. The officer who handles the city’s applications said he usually never reviews the flags. The pole is, in fact, a public forum, and Justice Breyer says Boston is unconstitutional “to be discriminated against on the basis of religious views.”
The three judges agreed with that finding but found its argument less discreet. Justice Samuel Alito concurred with Judges Clarence Thomas and Neil Gorsuch that “government speech occurs if — but only if — a government purposefully expresses its own message through persons authorized to speak on behalf of the government”.
Even if Boston proactively stipulates what private flags can be raised outside of City Hall, it won’t make them Boston speech. Whether a “reasonable” person would mistakenly assign the flag to the city is also up to the point.
Justice Gorsuch delves into that last issue with Justice Thomas’s concurrence. The “reasonable observer” standard, he said, is rooted in the Court’s 1971 precedent of Lemon and Kurtzman, created a silly three-part test for disputes over the Constitution’s ban on establishing religion. As a result, he adds, the judges began to imagine how a “lazy”, “uninformed” and “irritable” viewer might react to a flag or Christmas scene. . “Just ask him,” wrote Justice Gorsuch, “if he feel it ‘endorses’ religion. If so, game over. ”
The Supreme Court did not apply Yellow lemon he said: “nearly two decades” of testing. However, the First Circuit cited precedent. “Our Constitution is not designed to remove religion from American life; it is designed to ensure ‘respect and tolerance’, he concludes. “This court has long intervened Yellow lemonand it is a thing of the past for local officials and lower courts to let it lie.”
Forever crushing a rotten one Yellow lemon is a worthy goal, and we await the day the Court finds an opportunity to do so.
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https://www.wsj.com/articles/the-supreme-court-hoists-a-christian-flag-religious-liberty-shurtleff-v-boston-stephen-breyer-neil-gorsuch-11651525494 The Supreme Court Hoists a Christian Flag