On Monday, the Supreme Court unanimously ruled that, as the editors of the New York Sun put it, “a Christian group may no longer be excluded from occasionally flying its banner on a municipal flagpole outside Boston’s city hall.” But the majority opinion, written by Justice Stephen Breyer, seems unlikely to be the last word on questions relating to religious expression in public institutions.
Concurrences by three conservative justices make clear that the Court is far from united on the issue.
Justice Breyer’s opinion centers on the point that when “government encourages diverse expression,” or creates “a forum for debate” it cannot, under the First Amendment, discriminate “against speakers based on their viewpoint.”
To Justice Breyer, Boston’s city flagpoles are a forum. That finding contrasts with Boston’s view that the banners it permitted to wave on the municipal flagpole “reflect particular city-approved values or views.” While Justice Breyer observed that “may well be true of the Pride Flag raised annually to commemorate Boston Pride Week,” he found it “more difficult to discern a connection to the city” when a local bank, the Metro Credit Union, also held a flag-raising at city hall.
In the Boston opinion, Justice Breyer’s equanimity over the cause of religious freedom is plain. Boston’s “lack of meaningful involvement in the selection of flags” or their messages “leads us to classify the flag raisings as private, not government, speech,” he wrote, yet “nothing prevents Boston from changing its policies going forward.” How is that not an invitation to defy the court’s ruling?