Much has been made of the ideological and partisan differences among members of the Supreme Court, but occasionally a case comes along that transcends all of that and elicits a unanimous response from the bench.
The latest example of such occurred Monday when the Supreme Court issued a 9-0 ruling against the city of Boston, Massachusetts after it discriminated against a private Christian group by barring it from flying a Christian flag in a public forum, The Conservative Brief reported.
The city had argued that allowing the Christian flag to fly in front of City Hall would have the appearance of constituting official government speech favoring a particular religion and be in violation of the Constitution’s Establishment Clause.
The court, however, noted that the city had never before objected to any of dozens of other secular flags flown in front of City Hall for special ceremonies and events at the city’s main plaza, nor had it previously argued that any of those previous flags could be mistakenly interpreted as government-endorsed speech.
Public forums must be open to all and can’t discriminate against religion
Indeed, NBC News reported that while this particular case involving the Christian flag had religious overtones, fundamentally it was about the basic tenets of free speech and actually had little to do with the expression or censorship of religious beliefs, per se.
In the end, the court unanimously agreed that because Boston had opened up the plaza outside City Hall as a public forum and allowed one of its three flag poles to be used to display flags and banners related to special ceremonies and events held in that forum, it had to treat equally all who sought to use that public forum in accordance with the city’s policy.
Justice Stephen Breyer wrote the majority opinion for the unanimous court and determined, “When the government encourages diverse expression — say, by creating a forum for debate — the First Amendment prevents it from discriminating against speakers based on their viewpoint.”
He added, “The city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech — though nothing prevents Boston from changing its policies going forward.”
Concurring opinions also issued on the matter
SCOTUSblog reported that while the ruling was unanimous, there were also several concurring opinions written by other justices that agreed with the overall decision but disputed the manner in which it was ultimately arrived at.
Justice Brett Kavanaugh keyed in on the Establishment Clause and noted that it required governments to treat religious and secular individuals and organizations equally. “A government violates the Constitution when (as here) it excludes religious persons, organizations, or speech because of religion from public programs, benefits, facilities, and the like,” he wrote. “Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class.”
Likewise, Justice Samuel Alito wrote an opinion that concurred with Breyer but disagreed with the particular three-part “test” the liberal jurist had used and argued instead that only one real test was necessary — whether or not the speech in question was made by a private party or the government.
Finally, Justice Neil Gorsuch also wrote a concurring opinion that sharply attacked an outdated and abandoned prior court precedent, Lemon v. Kurtzman, that Boston had relied upon to prohibit the Christian flag from being flown but which Gorsuch asserted was a faulty test — hence the high court long ago abandoning it — that could be manipulated to achieve any sort of desired outcome for those who employ it.
