Shurtleff's Ripple Effect

How the Supreme Court's 9-0 Decision Affected Flag-Flying Policies Nationwide

When the United States Supreme Court handed down its 9-0 opinion in Shurtleff v. City of Boston on May 2, 2022, it marked a great victory for the protection of religious speech in a public forum. The High Court ruled unanimously that the City of Boston missed the mark by invoking the “Establishment Clause” to censor Camp Constitution’s request to fly the Christian flag on the City of Boston’s flagpole “open to all applicants.” 

For 12 years, Boston had approved 284 applications with not a single denial, nixing only Camp Constitution’s request to participate in the public program designed to celebrate the city’s rich cultural and historical diversity. Astonishingly, Boston censored the flag because the application referred to it as a “Christian flag.” If the word “Christian” were removed from the application and the same flag given a nonreligious modifier (like “Camp Constitution flag”), Boston would have approved the application.  

The High Court stated Boston’s censorship of the Christian flag was viewpoint discrimination, and there was no Establishment Clause defense. More specifically, the Court rejected Boston’s reliance on the 1971 case of Lemon v. Kurtzman. Relying on the Shurtleff case, the Supreme Court then overruled the so-called “Lemon test” in the Coach Kennedy case. 

Thirteen months later, Shurtleff’s ripple effect can be felt coast to coast. Not only did the Supreme Court’s decision give religious viewpoints an equal footing in the public square, but it also served as a warning sign to government entities catering to special interest groups. The unanimous opinion called out government’s tendency to grant blatant (and unconstitutional) favoritism to certain viewpoints at the expense of other disfavored ones. 

Fast-forward to June 2023 for a relevant case in point. Spurred on by the White House proclamation calling the American people to “wave their flags of pride high” and inundated with free advertising by some of the country’s largest corporations (think Target, Kohl’s, Budweiser), all Americans were urged to join in celebrating so-called “Pride Month” –– a nonstop 30 days of supporting all things LGBTQ and pledging allegiance to its increasingly radical ideology. Nothing has symbolized the show of solidarity to LGBTQ ideals more than flying the six-stripe LGBTQ rainbow flag. During June, Americans can see this flag flying in storefronts, restaurants, and, inappropriately, on government and U.S. military flagpoles and properties. 

The practice of favoring the LGBTQ rainbow flag to the exclusion of equal treatment for flags of differing viewpoints stands in direct conflict with the Supreme Court’s decision in Shurtleff. 

“The clear message from the Supreme Court is that government must not discriminate based on viewpoint,” said Mat Staver, founder and chairman of Liberty Counsel. “The government cannot favor one viewpoint and censor another, and cannot censor religious viewpoints under the guise of government speech. Any governments that are ignoring this ruling are setting themselves up for potential lawsuits.” 

From the historic village of Cold Spring, New York, to Orange County, California, government officials are waking up to the fact that government flag-flying policies need to “stay in their lane” and stick to flying county, state, and national flags.  

Encapsulating the collective sentiment of many local governments nationwide, Cold Spring Mayor Kathleen Foley said, “We didn’t think through the Pandora’s box that was being opened. You get into that sticky area where you are acting as arbitrator of free speech.” 

While Mayor Foley had the wherewithal to recently take down flying a foreign country’s flag (Ukraine) on government property, she said the Pride flag will remain on display through the end of June, despite acknowledging that it’s a “sticky area.” In the meantime, village attorney John Furst is now drafting a regulation that, once adopted, will allow only the U.S., New York State, and POW/MIA flags to be displayed. The regulation comes after members of the Cold Spring Village Board unanimously voted on June 1, 2023, to stop accepting requests to fly flags on village-owned property. 

Cold Spring joins many municipalities and school districts across the country that have passed similar restrictions, including Hamtramck, Michigan; Delaware, Ohio; and Southington, Connecticut. 

Some cities acted soon after the Shurtleff decision was announced. For example, in 2022, Delaware, Ohio, cited the Boston Flag case decision in its announcement to hit the pause button on the city’s flag program. City Manager Thomas Homan wrote a letter to flag applicants on May 10, 2022 (just over a week after the Shurtleff decision was released), stating, “As a result of the Supreme Court ruling, the City of Delaware is pausing its flag and banner program to review and evaluate it in light of the Shurtleff decision.” 

In Wethersfield, Connecticut, a similar scenario played out in December 2022 when the city council voted 5-4 to limit what flags could be flown on government property. Like Mayor Foley in Cold Spring, Mayor Michael Rell, who had previously supported raising the “rainbow pride flag,” voted this time not to allow it because he believed the ruling in Shurtleff could open the town to lawsuits if they tried to be the “ultimate decision-making body” for who can or cannot fly flags. 

“When we allow any one group to fly their flag it sends a message to the public,” Rell said. “It puts us in a position where, as a council, we would have to sit there and pick one group over the other. … It’s not a position the council should be in. The council’s role is to make policy. We should not be making divisive political decisions that could set the town up for a lawsuit.” 

As Shurtleff’s ripple effect continues to affect flag-flying policies across the country, the legacy of the precedent-setting unanimous ruling is about much more than which flags get to fly on what flagpoles; it’s about equal treatment under the law that provides safeguards against viewpoint discrimination for all Americans for generations to come.  

Liberty Counsel’s Mat Staver sums it up well: “This case is about more than just the Christian flag. This will set national precedent and affect everyone. We must not give government the power to censor disfavored viewpoints –– while granting special treatment to favored ones –– in a public forum.”