Supreme Court: Religious Speech Must Be Treated Equally

The Supreme Court has had some high-profile cases in its latest term, notably those dealing with abortion and the environment.

But it also ruled in a less well-known, but very significant, case regarding a constitutional question involving the First Amendment: Shurtleff v. City of Boston.

It centers on Boston's policy to fly flags on behalf of organizations that request their respective flags be flown on a flagpole that typically flies the city's flag.

The city government received an application from Camp Constitution, an organization that seeks "to enhance the understanding of the country's Judeo-Christian moral heritage."

The organization applied under the program to fly the Christian flag atop the city's flagpole — only to be turned down because of the religious connotation of the flag.

The Supreme Court, however, rejected that assessment. It held that the flag policy could not single out requests because they convey a religious expression.

"What I got from the opinion is that the government cannot point to illusory Establishment Clause violations in order to support discriminating against religious views," Lea Patterson, counsel with First Liberty Institute, a legal organization that is dedicated to defending religious liberties of Americans under the First Amendment, told Newsmax. "The idea is that when the government allows speech in a particular area, the government cannot exclude religious speech from that forum under the view that religious speech is inherently dangerous."

Patterson added that such "challenges crop up when the government opens up a forum, allows groups to do or print things, but then argues that since they are a government institution that they cannot have anything to do with religious speech.

"Yet the peoples' speech in that forum is not attributable to government institutions and that is not an Establishment Clause violation. So governments can't say that they are afraid of (an Establishment Clause challenge) and refuse to allow religious speech in a government sponsored forum."

The main constitutional challenge in Shurtleff, according to Paterson, is "the idea being that you have viewpoint discrimination in a forum, and a lot of the meat came from whether this is government speech or if this constitutes private speech.

"When it is other people speaking, not the government, the government cannot turn around and exclude that speech even if they are worried about it."

In Shurtleff, a majority of the Supreme Court created a three-factor test to determine whether the speech in a given government forum was from a private or public entity.

Patterson elaborated that this test "looks to a number of sorts of evidence: they look at the history of the expression that is being used. They look at the public's likely perception of whether this is a public or a private expression, and they also look at whether there was any government control in shaping the expression.

"The first and the third factors were clearly the most persuasive and determinative because Boston exercised zero control and the broader history of flags and flagpoles was mostly viewed as government speech.

"But because of the way Boston crafted the program, that lack of control really switched that [initial assessment]."

The impact of this decision is bifurcated, Patterson said.

"I would hope that this encourages governments to be very clear with their policies when they decide to open a forum, and state what level of control that they are exercising about what it will do and what it won't do," she said.

Turning to the future, she believes "the other impact will be now with the overturn of Lemon in that it gets through the heads of government officials that they cannot treat religious speech, expression, or exercise as something that is especially problematic."

The Lemon test applied to the Establishment Clause within the First Amendment, and originated from the now-overturned case Lemon v. Kurtzman. The test is: 1) have a legitimate secular purpose, 2) not have the primary effect of either advancing or inhibiting religion, and (3) not result in an excessive entanglement of government and religion.

Patterson found that "it is not particularly uncommon for governments to close extra forums that they have opened when they find out they cannot regulate them in the way they originally planned to do. The idea of 'taking your ball and going home' is certainly not good sportsmanship, but it is certainly something that they can do and have done.

"That being said, they can only close forums that they opened, they cannot close traditional forums."

The main takeaway from Shurtleff, Patterson said, "is that religious expression has to be treated equally."

Michael Cozzi is a student at Catholic University School of Law in Washington, D.C.