Shurtleff v. Boston
The Supreme Court ruled unanimously that Boston violated the First Amendment when it refused to let a private group fly a Christian flag outside city hall, because the city's flagpole program was a forum for private speech, not an expression of the city's own views.
The decision means governments that open public spaces or facilities to a wide range of private groups generally cannot single out religious speech for exclusion, even if officials worry that allowing it might appear to endorse religion.
How it got here: The federal district court ruled for Boston on summary judgment; the First Circuit affirmed; Shurtleff and Camp Constitution petitioned the Supreme Court, which agreed to hear the case.
The Case in Depth
What happened
Harold Shurtleff, director of an organization called Camp Constitution, asked Boston in 2017 for permission to hold an event on City Hall Plaza and raise what he called a "Christian flag" — a red cross on a blue field against a white background. Boston had approved about 284 flag-raising ceremonies for private groups since 2005, including flags of foreign countries, a Pride flag, and a community bank banner, but had never once denied a request — until Shurtleff's. The city refused, fearing the display would violate the Constitution's Establishment Clause.
The question before the Court
When a city opens a flagpole outside city hall to private groups raising flags of their choosing, can the city refuse a request to raise a Christian flag because officials feared the display would violate the Constitution's church-state separation rules?
The Court's answer
No — Boston could not refuse to let Camp Constitution fly its Christian flag. The Court ruled that Boston's flag-raising program was private speech, not government speech, because the city exercised virtually no control over what flags were raised or what messages they conveyed. Boston had no written policy, approved every application without exception, and its staff never even reviewed flags before events. That "come-one-come-all" approach meant the city was hosting a forum for private expression, not speaking for itself.
Because the program was a private forum rather than government speech, Boston was bound by the rule against viewpoint discrimination. Excluding a flag solely because it was religious — while allowing all secular flags — was unconstitutional discrimination based on religious viewpoint under the First Amendment's Free Speech Clause, regardless of whatever Establishment Clause concerns officials had.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Cities and towns that let private groups use public spaces, flagpoles, bulletin boards, or similar resources open to the general public cannot turn away requests simply because the message is religious. Officials who do so risk violating the First Amendment's Free Speech Clause — the very outcome Boston's Establishment Clause caution was trying to avoid.
What changes now
The case is sent back to lower courts for further proceedings consistent with the Supreme Court's ruling. Under the existing program, Boston must treat Camp Constitution's flag request like any other. The Court noted, however, that nothing prevents Boston from changing its policies going forward — for example, by adopting a written policy that clearly reserves the flagpoles for government-controlled expression, which could change the legal analysis in future cases.
What this does not decide
The ruling does not decide whether a city with a more clearly defined, actively managed flag policy — one that expressly reserved the poles for government messages and exercised real content control — could lawfully refuse religious flags. It also does not address what the Establishment Clause itself requires or prohibits in this or similar contexts.
Concurrences and dissents
Concurrence — Justice Kavanaugh
Justice Kavanaugh wrote separately to emphasize that Boston's error flowed from a fundamental misreading of the Establishment Clause. The Constitution does not prohibit the government from treating religious speech equally with secular speech in public programs; on the contrary, it forbids the government from treating religion as second-class. Allowing a religious flag to fly alongside secular flags would not have been an establishment of religion — excluding it was a Free Speech violation.
Concurrence — Justice Alito
Justice Alito agreed with the result but rejected the majority's three-factor government-speech test drawn from Walker and Summum, arguing those cases never established a general test and that mechanically applying those factors can obscure the real question: whether the government is actually speaking or merely facilitating private speech. He proposed a stricter framework requiring the government to show it purposefully communicated a governmentally determined message through someone authorized to speak for it, using a means that did not abridge private expression. Under that approach, Boston's open-access program was obviously a private forum, not government speech.
Concurrence — Justice Gorsuch
Justice Gorsuch agreed with the result but wrote to identify the deeper cause of Boston's mistake: the city was following the Lemon v. Kurtzman test, an ahistoric three-part framework that this Court has not applied for nearly two decades and that has produced only confusion. Lemon caused local officials to suppress religious speech in the name of the Establishment Clause, inviting the very First Amendment violations it was meant to prevent. Gorsuch argued the proper Establishment Clause inquiry is grounded in history and the founding-era understanding of religious establishment, and he urged local officials and lower courts to stop applying Lemon.
How the Court got there
The legal reasoning, step by step
- The threshold question was whether Boston's flag-raising program constituted 'government speech.' When the government speaks for itself, the First Amendment does not require it to include all viewpoints. But when it opens a forum for others to speak, it cannot discriminate based on viewpoint. The Court applied a holistic, fact-driven inquiry guided by three types of evidence: the history of the expression, the public's likely perception of who is speaking, and how much the government actively shaped or controlled the messages.
- On history: flags have long symbolized governments and communities. Flying flags at the seat of government has traditionally conveyed official messages, and this factor favored Boston. But history was only a starting point — the Court still had to examine what actually happened in Boston's specific program.
- On public perception: a passerby seeing a flag next to the American and Massachusetts flags outside city hall would likely associate it with the government. However, during ceremonies a passerby might also see private citizens conducting the event themselves, making the perception evidence inconclusive and unable to resolve the question either way.
- On government control — the most important factor: Boston exercised virtually no control over flag content or meaning. It had no written policy about what flags could fly, never reviewed a flag before an event, and approved every single application without exception. This loose approach was far closer to the Patent and Trademark Office in Matal v. Tam (which registered all manner of trademarks without exercising content control) than to the active oversight in Summum (where a city carefully selected park monuments) or Walker v. Texas Div., Sons of Confederate Veterans (where a state board actively reviewed license plate designs and rejected over a dozen). Boston's lack of meaningful involvement in selecting flags or crafting their messages led the Court to classify the flag raisings as private, not government, speech.
- Because the program was private speech in a public forum, the Free Speech Clause's prohibition on viewpoint discrimination applied. Boston admitted it denied Shurtleff's request solely because the flag 'promoted a specific religion.' Excluding speech based on religious viewpoint — while allowing all secular flags — was unconstitutional viewpoint discrimination under the rule established in Good News Club v. Milford Central School, regardless of the city's Establishment Clause concerns, which were based on the now-rejected premise that the program was government speech.
Doctrinal impact
Cases affected by this decision
Reaffirms Good News Club v. Milford Central School (533 U. S. 98)
The rule that governments may not exclude religious viewpoints from public forums is reaffirmed and applied here.
Distinguishes Walker v. Texas Div., Sons of Confederate Veterans, Inc. (576 U. S. 200)
Boston's minimal flag control was far below the active state oversight of license plate designs that made Walker government speech.
Distinguishes Pleasant Grove City v. Summum (555 U. S. 460)
Boston's passive approval of flags differed from the city's deliberate selection and ownership of permanent park monuments in Summum.