ACLU Supports Speech Rights of Conservative Christian Group to Display Flag in Front of Boston’s City Hall

November 22, 2021 3:00 pm

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WASHINGTON — The American Civil Liberties Union and ACLU of Massachusetts filed a friend-of-the-court brief in the U.S. Supreme Court supporting a conservative Christian group’s claim that the city of Boston violated its First Amendment rights by refusing to fly a Christian flag, featuring the Latin cross, from a flagpole in front of City Hall.

Camp Constitution is a Christian group that celebrates the “Judeo-Christian” roots of the U.S. Constitution, is a critic of the theory of evolution, and opposes vaccination. It asked to fly its flag for one hour in front of City Hall in conjunction with a Camp Constitution event being held in Boston. The city said no, expressing concern about flying a Christian flag. But Boston had opened up its flagpole to similar temporary flag displays for more than a decade, and had approved the display of 284 flags over a 12-year period, without rejecting a single one, before it turned down the Camp Constitution flag.

The U.S. Court of Appeals for the First Circuit ruled that Boston did not violate the First Amendment, because the flags flying on its flagpole were “government speech,” not the speech of private parties, and that the First Amendment therefore does not limit its choices as to whose flag to fly. The ACLU argues that by opening its flagpole to a decades’ worth of private flag displays, from a diverse range of speakers, Boston was obligated to treat Camp Constitution the same, and could not turn down its flag because it was religious.

“We have long expressed concern about government endorsement of religion, and have sued often to enforce the Establishment Clause,” said ACLU National Legal Director David Cole. “But when the government opens a forum to private speakers generally, as Boston did here, it can’t turn away a speaker simply because it is religious. Displaying Camp Constitution’s flag for a single hour on a single day would not have violated the Establishment Clause, and refusing to do so because the flag is religious violates the free speech guarantees of the First Amendment. We don’t agree with Camp Constitution’s views, but we defend its right to express them.”

Acting as counsel for the ACLU and the ACLU of Massachusetts on the brief are noted Supreme Court advocate Lisa Blatt and Matthew Nicholson of Williams & Connolly.

The brief is here:

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