Shurtleff v. Boston ( 2022 )

(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SHURTLEFF ET AL. v. CITY OF BOSTON ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
No. 20–1800. Argued January 18, 2022—Decided May 2, 2022
Just outside the entrance to Boston City Hall, on City Hall Plaza, stand
three flagpoles. Boston flies the American flag from the first pole and
the flag of the Commonwealth of Massachusetts from the second. Bos-
ton usually flies the city’s own flag from the third pole. But Boston
has, for years, allowed groups to hold ceremonies on the plaza during
which participants may hoist a flag of their choosing on the third pole
in place of the city’s flag. Between 2005 and 2017, Boston approved
the raising of about 50 unique flags for 284 such ceremonies. Most of
these flags were other countries’, but some were associated with
groups or causes, such as the Pride Flag, a banner honoring emergency
medical service workers, and others. In 2017, Harold Shurtleff, the
director of an organization called Camp Constitution, asked to hold an
event on the plaza to celebrate the civic and social contributions of the
Christian community; as part of that ceremony, he wished to raise
what he described as the “Christian flag.” The commissioner of Bos-
ton’s Property Management Department worried that flying a reli-
gious flag at City Hall could violate the Establishment Clause and
found no past instance of the city’s having raised such a flag. He there-
fore told Shurtleff that the group could hold an event on the plaza but
could not raise their flag during it. Shurtleff and Camp Constitution
(petitioners) sued, claiming that Boston’s refusal to let them raise their
flag violated, among other things, the First Amendment’s Free Speech
Clause. The District Court held that flying private groups’ flags from
City Hall’s third flagpole amounted to government speech, so Boston
could refuse petitioners’ request without running afoul of the First
Amendment. The First Circuit affirmed. This Court granted certiorari
to decide whether the flags Boston allows others to fly express govern-
ment speech, and whether Boston could, consistent with the Free
2 SHURTLEFF v. BOSTON
Syllabus
Speech Clause, deny petitioners’ flag-raising request.
Held: 1. Boston’s flag-raising program does not express government
speech. Pp. 5–12.
(a) The Free Speech Clause does not prevent the government from
declining to express a view. See Pleasant Grove City v. Summum, 555
U. S. 460, 467–469. The government must be able to decide what to
say and what not to say when it states an opinion, speaks for the com-
munity, formulates policies, or implements programs. The boundary
between government speech and private expression can blur when, as
here, the government invites the people to participate in a program.
In those situations, the Court conducts a holistic inquiry to determine
whether the government intends to speak for itself or, rather, to regu-
late private expression. The Court’s cases have looked to several types
of evidence to guide the analysis, including: the history of the expres-
sion at issue; the public’s likely perception as to who (the government
or a private person) is speaking; and the extent to which the govern-
ment has actively shaped or controlled the expression. See Walker v.
Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. 200, 209–213.
Considering these indicia in Summum, the Court held that the mes-
sages of permanent monuments in a public park constituted govern-
ment speech, even when the monuments were privately funded and
donated. See 555 U. S., at 470–473. In Walker, the Court found that
license plate designs proposed by private groups also amounted to gov-
ernment speech because, among other reasons, the State that issued
the plates “maintain[ed] direct control over the messages conveyed” by
“actively” reviewing designs and rejecting over a dozen proposals. 576
U. S., at 213. On the other hand, in Matal v. Tam, the Court concluded
that trademarking words or symbols generated by private registrants
did not amount to government speech because the Patent and Trade-
mark Office did not exercise sufficient control over the nature and con-
tent of those marks to convey a governmental message. 582 U. S.___,
___. Pp. 5–6.
(b) Applying this government-speech analysis here, the Court finds
that some evidence favors Boston, and other evidence favors Shurtleff.
The history of flag flying, particularly at the seat of government, sup-
ports Boston. Flags evolved as a way to symbolize communities and
governments. Not just the content of a flag, but also its presence and
position have long conveyed important messages about government.
Flying a flag other than a government’s own can also convey a govern-
mental message. For example, another country’s flag outside Blair
House, across the street from the White House, signals that a foreign
leader is visiting. Consistent with this history, flags on Boston’s City
Hall Plaza usually convey the city’s messages. Boston’s flag symbol-
Cite as: 596 U. S. ____ (2022) 3
Syllabus
izes the city and, when flying at halfstaff, conveys a community mes-
sage of sympathy or somber remembrance. The question remains
whether, on the 20 or so times a year when Boston allowed private
groups to raise their own flags, those flags, too, expressed the city’s
message. The circumstantial evidence of the public’s perception does
not resolve the issue. The most salient feature of this case is that Bos-
ton neither actively controlled these flag raisings nor shaped the mes-
sages the flags sent. To be sure, Boston maintained control over an
event’s date and time to avoid conflicts, and it maintained control over
the plaza’s physical premises, presumably to avoid chaos. But the key
issue is whether Boston shaped or controlled the flags’ content and
meaning; such evidence would tend to show that Boston intended to
convey the flags’ messages as its own. And on that issue, Boston’s rec-
ord is thin. Boston says that all (or at least most) of the 50 unique
flags it approved reflect particular city-endorsed values or causes.
That may well be true of flying other nations’ flags, or the Pride Flag
raised annually to commemorate Boston Pride Week, but the connec-
tion to other flag-raising ceremonies, such as one held by a community
bank, is more difficult to discern. Further, Boston told the public that
it sought “to accommodate all applicants” who wished to hold events
at Boston’s “public forums,” including on City Hall Plaza. App. to Pet.
for Cert. 137a. The city’s application form asked only for contact infor-
mation and a brief description of the event, with proposed dates and
times. The city employee who handled applications testified that he
did not request to see flags before the events. Indeed, the city’s prac-
tice was to approve flag raisings without exception—that is, until pe-
titioners’ request. At the time, Boston had no written policies or clear
internal guidance about what flags groups could fly and what those
flags would communicate. Boston’s control is therefore not comparable
to the degree of government involvement in the selection of park mon-
uments in Summum, see 555 U. S., at 472–473, or license plate designs
in Walker, see 576 U. S., at 213. Boston’s come-one-come-all practice—
except, that is, for petitioners’ flag—is much closer to the Patent and
Trademark Office’s policy of registering all manner of trademarks in
Matal, see 582 U. S., at ___, ___. All told, Boston’s lack of meaningful
involvement in the selection of flags or the crafting of their messages
leads the Court to classify the third-party flag raisings as private, not
government, speech. Pp. 6–12.
2. Because the flag-raising program did not express government
speech, Boston’s refusal to let petitioners fly their flag violated the
Free Speech Clause of the First Amendment. When the government
does not speak for itself, it may not exclude private speech based on
“religious viewpoint”; doing so “constitutes impermissible viewpoint
discrimination.” Good News Club v. Milford Central School, 533 U. S.
4 SHURTLEFF v. BOSTON
Syllabus
98, 112. Boston concedes that it denied petitioners’ request out of Es-
tablishment Clause concerns, solely because the proposed flag “pro-
mot[ed] a specific religion.” App. to Pet. for Cert. 155a. In light of the
Court’s government-speech holding, Boston’s refusal to allow petition-
ers to raise their flag because of its religious viewpoint violated the
Free Speech Clause. Pp. 12–13.
986 F. 3d 78, reversed and remanded.
BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ., joined. KA-
VANAUGH, J., filed a concurring opinion. ALITO, J., filed an opinion con-
curring in the judgment, in which THOMAS and GORSUCH, JJ., joined.
GORSUCH, J., filed an opinion concurring in the judgment, in which
THOMAS, J., joined.
Cite as: 596 U. S. ____ (2022) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–1800
_________________
HAROLD SHURTLEFF, ET AL., PETITIONERS v. CITY
OF BOSTON, MASSACHUSETTS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[May 2, 2022]
JUSTICE BREYER delivered the opinion of the Court.
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. See Rosenberger v. Rector and Visitors of
Univ. of Va., 515 U. S. 819, 828–830 (1995). But when the
government speaks for itself, the First Amendment does not
demand airtime for all views. After all, the government
must be able to “promote a program” or “espouse a policy”
in order to function. Walker v. Texas Div., Sons of Confed-
erate Veterans, Inc., 576 U. S. 200, 208 (2015). The line be-
tween a forum for private expression and the government’s
own speech is important, but not always clear.
This case concerns a flagpole outside Boston City Hall.
For years, Boston has allowed private groups to request use
of the flagpole to raise flags of their choosing. As part of
this program, Boston approved hundreds of requests to
raise dozens of different flags. The city did not deny a single
request to raise a flag until, in 2017, Harold Shurtleff, the
director of a group called Camp Constitution, asked to fly a
2 SHURTLEFF v. BOSTON
Opinion of the Court
Christian flag. Boston refused. At that time, Boston ad-
mits, it had no written policy limiting use of the flagpole
based on the content of a flag. The parties dispute whether,
on these facts, Boston reserved the pole to fly flags that
communicate governmental messages, or instead opened
the flagpole for citizens to express their own views. If the
former, Boston is free to choose the flags it flies without the
constraints of the First Amendment’s Free Speech Clause.
If the latter, the Free Speech Clause prevents Boston from
refusing a flag based on its viewpoint.
We conclude that, on balance, Boston did not make the
raising and flying of private groups’ flags a form of govern-
ment speech. That means, in turn, that Boston’s refusal to
let Shurtleff and Camp Constitution raise their flag based
on its religious viewpoint “abridg[ed]” their “freedom of
speech.” U. S. Const., Amdt. I.
I
A
The flagpole at issue stands at the entrance of Boston
City Hall. See Appendix, infra. Built in the late 1960s,
Boston City Hall is a raw concrete structure, an example of
the brutalist style. Critics of the day heralded it as a public
building that “articulates its functions” with “strength, dig-
nity, grace, and even glamor.” J. Conti, A New City Hall:
Boston’s Boost for Urban Renewal, Wall Street Journal,
Feb. 12, 1969, p. 14. (The design has since proved some-
what more controversial. See, e.g., E. Mason, Boston City
Hall Named World’s Ugliest Building, Boston Herald
(Nov. 15, 2008), https://www.bostonherald.com/2008/11/15/
boston-city-hall-named-worlds-ugliest-building.) More to
the point, Boston City Hall sits on City Hall Plaza, a 7-acre
expanse paved with New England brick. Inspired by open
public spaces like the Piazza del Campo in Siena, the plaza
was designed to be “ ‘Boston’s fairground,’ ” a “public gath-
ering spac[e]” for the people. N. DeCosta-Klipa, Why Is
Cite as: 596 U. S. ____ (2022) 3
Opinion of the Court
Boston City Hall the Way It Is? Boston.com (July 25, 2018),
https://www.boston.com/news/history/2018/07/ 25/boston-
city-hall-brutalism.
On the plaza, near City Hall’s entrance, stand three 83-
foot flagpoles. Boston flies the American flag from the first
pole (along with a banner honoring prisoners of war and
soldiers missing in action). From the second, it flies the flag
of the Commonwealth of Massachusetts. And from the
third, it usually (but not always) flies Boston’s flag—a
sketch of the “City on a Hill” encircled by a ring against a
blue backdrop.
Boston makes City Hall Plaza available to the public for
events. Boston acknowledges that this means the plaza is
a “public forum.” Brief for Respondents 27. The city’s policy
is, “[w]here possible,” “to accommodate all applicants seek-
ing to take advantage of the City of Boston’s public forums,”
including the plaza and the area at the flagpoles’ base. App.
to Pet. for Cert. 133a, 137a.
For years, since at least 2005, the city has allowed groups
to hold flag-raising ceremonies on the plaza. Participants
may hoist a flag of their choosing on the third flagpole (in
place of the city’s flag) and fly it for the duration of the
event, typically a couple of hours. Most ceremonies have
involved the flags of other countries—from Albania to Ven-
ezuela—marking the national holidays of Bostonians’ many
countries of origin. But several flag raisings have been as-
sociated with other kinds of groups or causes, such as Pride
Week, emergency medical service workers, and a commu-
nity bank. All told, between 2005 and 2017, Boston ap-
proved about 50 unique flags, raised at 284 ceremonies.
Boston has no record of refusing a request before the events
that gave rise to this case. We turn now to those events.
B
In July 2017, Harold Shurtleff, the director of an organi-
zation called Camp Constitution, asked to hold a flag-
4 SHURTLEFF v. BOSTON
Opinion of the Court
raising event that September on City Hall Plaza. The event
would “commemorate the civic and social contributions of
the Christian community” and feature remarks by local
clergy. Id., at 130a–131a. As part of the ceremony, the or-
ganization wished to raise what it described as the “Chris-
tian flag.” Id., at 131a. To the event application, Shurtleff
attached a photo of the proposed flag: a red cross on a blue
field against a white background.
The commissioner of Boston’s Property Management De-
partment said no. The problem was “not the content of the
Christian flag,” but “the fact that it was the Christian flag
or [was] called the Christian flag.” App. in No. 20–1158
(CA1), at 212–213 (deposition of then-commissioner Greg-
ory T. Rooney, hereafter Rooney deposition). The commis-
sioner worried that flying a religious flag at City Hall could
violate the Constitution’s Establishment Clause and found
no record of Boston ever having raised such a flag. He told
Shurtleff that Camp Constitution could proceed with the
event if they would raise a different flag. Needless to say,
they did not want to do so.
C
Shurtleff and Camp Constitution (petitioners) sued Bos-
ton and the commissioner of its Property Management De-
partment (respondents). Petitioners claimed that Boston’s
refusal to let them raise their flag violated, among other
things, the First Amendment’s Free Speech Clause. They
asked for an immediate order requiring Boston to allow the
flag raising, but the District Court denied the request. See
337 F. Supp. 3d 66 (Mass. 2018), aff ’d, 928 F. 3d 166 (CA1
2019). The parties engaged in discovery. At its close, they
filed cross-motions for summary judgment. The parties
agreed to all relevant facts and submitted a joint statement
setting them out. App. to Pet. for Cert. 128a–160a.
On that record, the District Court held that flying private
Cite as: 596 U. S. ____ (2022) 5
Opinion of the Court
groups’ flags from City Hall’s third pole amounted to gov-
ernment speech. See 2020 WL 555248, *5, ___ F. Supp. 3d
___, ___ (Mass., Feb. 4, 2020). Hence, the city acted within
its constitutional authority in declining to raise Camp Con-
stitution’s flag. Id., at *3, *5. The District Court therefore
granted summary judgment for Boston. The First Circuit
affirmed. See 986 F. 3d 78 (2021).
Shurtleff and Camp Constitution next petitioned this
Court for certiorari. We agreed to decide whether the flags
Boston allows groups to fly express government speech, and
whether Boston could, consistent with the Free Speech
Clause, deny petitioners’ flag-raising request.
II
A
The first and basic question we must answer is whether
Boston’s flag-raising program constitutes government
speech. If so, Boston may refuse flags based on viewpoint.
The First Amendment’s Free Speech Clause does not pre-
vent the government from declining to express a view. See
Pleasant Grove City v. Summum, 555 U. S. 460, 467–469
(2009). When the government wishes to state an opinion,
to speak for the community, to formulate policies, or to im-
plement programs, it naturally chooses what to say and
what not to say. See Walker, 576 U. S., at 207–208. That
must be true for government to work. Boston could not eas-
ily congratulate the Red Sox on a victory were the city pow-
erless to decline to simultaneously transmit the views of
disappointed Yankees fans. The Constitution therefore re-
lies first and foremost on the ballot box, not on rules against
viewpoint discrimination, to check the government when it
speaks. See Board of Regents of Univ. of Wis. System v.
Southworth, 529 U. S. 217, 235 (2000).
The boundary between government speech and private
expression can blur when, as here, a government invites the
people to participate in a program. In those situations,
6 SHURTLEFF v. BOSTON
Opinion of the Court
when does government-public engagement transmit the
government’s own message? And when does it instead cre-
ate a forum for the expression of private speakers’ views?
In answering these questions, we conduct a holistic in-
quiry designed to determine whether the government in-
tends to speak for itself or to regulate private expression.
Our review is not mechanical; it is driven by a case’s context
rather than the rote application of rigid factors. Our past
cases have looked to several types of evidence to guide the
analysis, including: the history of the expression at issue;
the public’s likely perception as to who (the government or
a private person) is speaking; and the extent to which the
government has actively shaped or controlled the expres-
sion. See Walker, 576 U. S., at 209–214.
Considering these indicia in Summum, we held that the
messages of permanent monuments in a public park consti-
tuted government speech, even when the monuments were
privately funded and donated. See 555 U. S., at 470–473.
In Walker, we explained that license plate designs proposed
by private groups also amounted to government speech be-
cause, among other reasons, the State that issued the plates
“maintain[ed] direct control over the messages conveyed”
by “actively” reviewing designs and rejecting over a dozen
proposals. 576 U. S., at 213. In Matal v. Tam, 582 U. S.
___ (2017), on the other hand, we concluded that trade-
marking words or symbols generated by private registrants
did not amount to government speech. Id., at ___–___ (slip
op., at 14–18). Though the Patent and Trademark Office
had to approve each proposed mark, it did not exercise suf-
ficient control over the nature and content of those marks
to convey a governmental message in so doing. Ibid. These
precedents point our way today.
B
Applying the government-speech analysis to this record,
Cite as: 596 U. S. ____ (2022) 7
Opinion of the Court
we find that some evidence favors Boston, and other evi-
dence favors Shurtleff.
To begin, we look to the history of flag flying, particularly
at the seat of government. Were we to consider only that
general history, we would find that it supports Boston.
Flags are almost as old as human civilization. Indeed,
flags symbolize civilization. From the “primordial rag
dipped in the blood of a conquered enemy and lifted high on
a stick,” to the feudal banner bearing a lord’s coats of arms,
to the standards of the Aztecs, nearly every society has
taken a piece of cloth and “endow[ed] it, through the cir-
cumstances of its display, with a condensed power” to speak
for the community. W. Smith, Flags Through the Ages and
Across the World 1–2, 32, 34 (1975). Little wonder that the
Continental Congress, seeking to define a new nation,
“[r]esolved” on June 14, 1777, “[t]hat the Flag of the . . .
United States be thirteen stripes, alternate red and white:
that the union be thirteen stars, white in a blue field, rep-
resenting a new constellation.” 8 Journals of the Continen-
tal Congress 1774–1789, p. 464 (W. Ford ed. 1907). Today,
the American flag continues to symbolize our Nation, a con-
stellation of 50 stars standing for the 50 States.
Other contemporary flags, both state and local, reflect
their communities. Boston’s flag, for instance, bears the
city’s seal and motto rendered in blue and buff—the colors
of the Continental Army’s Revolutionary War uniforms.
See Symbols of the City of Boston, City of Boston (July 16,
2016), https://www.boston.gov/departments/tourism-sports-
and-entertainment/symbols-city-boston (Symbols of Bos-
ton).
Not just the content of a flag, but also its presence and
position have long conveyed important messages about gov-
ernment. The early morning sight of the stars and stripes
above Fort McHenry told Francis Scott Key (and, through
his poem, he told the rest of us) that the great experiment—
8 SHURTLEFF v. BOSTON
Opinion of the Court
the land of the free—had survived the British attack on Bal-
timore Harbor. See C. Lineberry, The Story Behind the
Star Spangled Banner, Smithsonian Magazine (Mar. 1,
2007). No less familiar, a flag at halfstaff tells us that the
government is paying its “respect to th[e] memory” of some-
one who has died. 4 U. S. C. §7(m). (Congress has ex-
plained, across several sections of the U. S. Code, the mean-
ing we should take from the “position,” “manner,” “time,”
and “occasions” of the American flag’s display. §§6, 7.) And
the presence of the Royal Standard flying from Windsor
Castle’s Round Tower says the Queen is home. See Windsor
Castle Today, Royal Collection Trust, www.rct.uk/visit/
windsor-castle/windsor-castle-today.
The flying of a flag other than a government’s own can
also convey a governmental message. A foreign flag outside
Blair House, across the street from the White House, sig-
nals that a foreign leader is visiting and the residence has
“becom[e] a de facto diplomatic mission of the guest’s home
nation.” M. French, United States Protocol: The Guide to
Official Diplomatic Etiquette 298 (2010). And, according to
international custom, when flags of two or more nations are
displayed together, they cannot be flown one nation above
the other “in time of peace.” 4 U. S. C. §7(g).
Keeping with this tradition, flags on Boston’s City Hall
Plaza usually convey the city’s messages. On a typical day,
the American flag, the Massachusetts flag, and the City of
Boston’s flag wave from three flagpoles. Boston’s flag, when
flying there at full mast, symbolizes the city. When flying
at halfstaff, it conveys a community message of sympathy
or somber remembrance. When displayed at other public
buildings, it marks the mayor’s presence. See Symbols of
Boston. The city also sometimes conveys a message by re-
placing its flag with another. When Boston’s mayor lost a
bet with Montreal’s about whose hockey team would win a
playoff series, Boston, duty-bound in defeat, hoisted the
Canadiens’ banner. See Tr. of Oral Arg. 54–55.
Cite as: 596 U. S. ____ (2022) 9
Opinion of the Court
While this history favors Boston, it is only our starting
point. The question remains whether, on the 20 or so times
a year when Boston allowed private groups to raise their
own flags, those flags, too, expressed the city’s message. So
we must examine the details of this flag-flying program.
Next, then, we consider whether the public would tend to
view the speech at issue as the government’s. In this case,
the circumstantial evidence does not tip the scale. On an
ordinary day, a passerby on Cambridge Street sees three
government flags representing the Nation, State, and city.
Those flags wave “in unison, side-by-side, from matching
flagpoles,” just outside “ ‘the entrance to Boston’s seat of
government.’ ” 986 F. 3d, at 88. Like the monuments in the
public park in Summum, the flags “play an important role
in defining the identity that [the] city projects to its own
residents and to the outside world.” 555 U. S., at 472. So,
like the license plates in Walker, the public seems likely to
see the flags as “ ‘conveying some message’ ” on the govern-
ment’s “ ‘behalf.’ ” 576 U. S., at 212 (quoting Summum, 555
U. S., at 471).
But as we have said, Boston allowed its flag to be lowered
and other flags to be raised with some regularity. These
other flags were raised in connection with ceremonies at the
flagpoles’ base and remained aloft during the events. Peti-
tioners say that a pedestrian glimpsing a flag other than
Boston’s on the third flagpole might simply look down onto
the plaza, see a group of private citizens conducting a cere-
mony without the city’s presence, and associate the new
flag with them, not Boston. Thus, even if the public would
ordinarily associate a flag’s message with Boston, that is
not necessarily true for the flags at issue here. Again, this
evidence of the public’s perception does not resolve whether
Boston conveyed a city message with these flags.
Finally, we look at the extent to which Boston actively
controlled these flag raisings and shaped the messages the
flags sent. The answer, it seems, is not at all. And that is
10 SHURTLEFF v. BOSTON
Opinion of the Court
the most salient feature of this case.
To be sure, Boston maintained control over an event’s
date and time to avoid conflicts. It maintained control over
the plaza’s physical premises, presumably to avoid chaos.
And it provided a hand crank so that groups could rig and
raise their chosen flags. But it is Boston’s control over the
flags’ content and meaning that here is key; that type of
control would indicate that Boston meant to convey the
flags’ messages.
On this issue, Boston’s record is thin. Boston says that
all (or at least most) of the 50 unique flags it approved re-
flect particular city-approved values or views. Flying flags
associated with other countries celebrated Bostonians’
many different national origins; flying other flags, Boston
adds, was not “wholly unconnected” from a diversity mes-
sage or “some other day or cause the City or Commonwealth
had already endorsed.” Brief for Respondents 8, 35. That
may well be true of the Pride Flag raised annually to com-
memorate Boston Pride Week. See Brief for Common-
wealth of Massachusetts et al. as Amici Curiae 25–26 (cit-
ing reports that the then-mayor of Boston gave remarks as
the Pride Flag was raised). But it is more difficult to dis-
cern a connection to the city as to, say, the Metro Credit
Union flag raising, a ceremony by a local community bank.
In any event, we do not settle this dispute by counting
noses—or, rather, counting flags. That is so for several rea-
sons. For one thing, Boston told the public that it sought
“to accommodate all applicants” who wished to hold events
at Boston’s “public forums,” including on City Hall Plaza.
App. to Pet. for Cert. 137a. The application form asked only
for contact information and a brief description of the event,
with proposed dates and times. The city employee who han-
dled applications testified by deposition that he had previ-
ously “never requested to review a flag or requested
changes to a flag in connection with approval”; nor did he
even see flags before the events. Id., at 150a. The city’s
Cite as: 596 U. S. ____ (2022) 11
Opinion of the Court
practice was to approve flag raisings, without exception. It
has no record of denying a request until Shurtleff ’s. Boston
acknowledges it “hadn’t spent a lot of time really thinking
about” its flag-raising practices until this case. App. in
No. 20–1158 (CA1), at 140 (Rooney deposition). True to its
word, the city had nothing—no written policies or clear in-
ternal guidance—about what flags groups could fly and
what those flags would communicate.
Compare the extent of Boston’s control over flag raisings
with the degree of government involvement in our most rel-
evant precedents. In Summum, we emphasized that Pleas-
ant Grove City always selected which monuments it would
place in its park (whether or not the government funded
those monuments), and it typically took ownership over
them. 555 U. S., at 472–473. In Walker, a state board
“maintain[ed] direct control” over license plate designs by
“actively” reviewing every proposal and rejecting at least a
dozen. 576 U. S., at 213. Boston has no comparable record.
The facts of this case are much closer to Matal v. Tam.
There, we held that trademarks were not government
speech because the Patent and Trademark Office registered
all manner of marks and normally did not consider their
viewpoint, except occasionally to turn away marks it
deemed “offensive.” 582 U. S., at ___, ___ (slip op., at 14,
22). Boston’s come-one-come-all attitude—except, that is,
for Camp Constitution’s religious flag—is similar.
Boston could easily have done more to make clear it
wished to speak for itself by raising flags. Other cities’ flag-
flying policies support our conclusion. The City of San Jose,
California, for example, provides in writing that its “ ‘flag-
poles are not intended to serve as a forum for free expres-
sion by the public,’ ” and lists approved flags that may be
flown “ ‘as an expression of the City’s official sentiments.’ ”
See Brief for Commonwealth of Massachusetts et al. as
Amici Curiae 18.
12 SHURTLEFF v. BOSTON
Opinion of the Court
All told, while the historical practice of flag flying at gov-
ernment buildings favors Boston, the city’s lack of meaning-
ful involvement in the selection of flags or the crafting of
their messages leads us to classify the flag raisings as pri-
vate, not government, speech—though nothing prevents
Boston from changing its policies going forward.
III
Last, we consider whether Boston’s refusal to allow
Shurtleff and Camp Constitution to raise their flag
amounted to impermissible viewpoint discrimination.
Boston acknowledges that it denied Shurtleff ’s request
because it believed flying a religious flag at City Hall could
violate the Establishment Clause. And it admits this con-
cern proceeded from the premise that raising the flag would
express government speech. See Brief in Opposition 23 (ex-
plaining that “viewpoint neutrality” was “incompatible”
with Boston’s view of its program). But we have rejected
that premise in the preceding pages. We must therefore
consider Boston’s actions in light of our holding.
When a government does not speak for itself, it may not
exclude speech based on “religious viewpoint”; doing so
“constitutes impermissible viewpoint discrimination.”
Good News Club v. Milford Central School, 533 U. S. 98,
112 (2001). Applying that rule, we have held, for example,
that a public university may not bar student-activity funds
from reimbursing only religious groups. See Rosenberger,
515 U. S., at 830–834. Here, Boston concedes that it denied
Shurtleff ’s request solely because the Christian flag he
asked to raise “promot[ed] a specific religion.” App. to Pet.
for Cert. 155a (quoting Rooney deposition). Under our prec-
edents, and in view of our government-speech holding here,
that refusal discriminated based on religious viewpoint and
violated the Free Speech Clause.
Cite as: 596 U. S. ____ (2022) 13
Opinion of the Court
* * *
For the foregoing reasons, we conclude that Boston’s flag-
raising program does not express government speech. As a
result, the city’s refusal to let Shurtleff and Camp Consti-
tution fly their flag based on its religious viewpoint violated
the Free Speech Clause of the First Amendment. We re-
verse the First Circuit’s contrary judgment and remand the
case for further proceedings consistent with this opinion.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
The flagpoles outside Boston City Hall fly the American flag, the Commonwealth of
Massachusetts flag, and the city flag, side by side, on an ordinary day.
Source: Preservation Priorities, Boston Preservation Alliance (Feb. 3, 2022), https://boston-preservation.
org/news-item/preservation-priorities-letter-mayor-wu
Cite as: 596 U. S. ____ (2022) 1
KAVANAUGH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–1800
_________________
HAROLD SHURTLEFF, ET AL., PETITIONERS v. CITY
OF BOSTON, MASSACHUSETTS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[May 2, 2022]
JUSTICE KAVANAUGH, concurring.
This dispute arose only because of a government official’s
mistaken understanding of the Establishment Clause. A
Boston official believed that the City would violate the Es-
tablishment Clause if it allowed a religious flag to briefly
fly outside of City Hall as part of the flag-raising program
that the City had opened to the public. So Boston granted
requests to fly a variety of secular flags, but denied a re-
quest to fly a religious flag. As this Court has repeatedly
made clear, however, a government does not violate the Es-
tablishment Clause merely because it treats religious per-
sons, organizations, and speech equally with secular per-
sons, organizations, and speech in public programs,
benefits, facilities, and the like. See, e.g., Zelman v.
Simmons-Harris, 536 U. S. 639 (2002). On the contrary, a
government violates the Constitution when (as here) it ex-
cludes religious persons, organizations, or speech because
of religion from public programs, benefits, facilities, and the
like. See, e.g., Espinoza v. Montana Dept. of Revenue, 591
U. S. ___ (2020); Good News Club v. Milford Central School,
533 U. S. 98 (2001); McDaniel v. Paty, 435 U. S. 618 (1978).
Under the Constitution, a government may not treat reli-
gious persons, religious organizations, or religious speech
as second-class.
Cite as: 596 U. S. ____ (2022) 1
ALITO, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–1800
_________________
HAROLD SHURTLEFF, ET AL., PETITIONERS v. CITY
OF BOSTON, MASSACHUSETTS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[May 2, 2022]
JUSTICE ALITO, with whom JUSTICE THOMAS and
JUSTICE GORSUCH join, concurring in the judgment.
I agree with the Court’s conclusion that Boston (hereafter
City) violated the First Amendment’s guarantee of freedom
of speech when it rejected Camp Constitution’s application
to fly what it characterized as a “Christian flag.” But I can-
not go along with the Court’s decision to analyze this case
in terms of the triad of factors—history, the public’s percep-
tion of who is speaking, and the extent to which the govern-
ment has exercised control over speech—that our decision
in Walker v. Texas Div., Sons of Confederate Veterans, Inc.,
576 U. S. 200 (2015), derived from Pleasant Grove City v.
Summum, 555 U. S. 460 (2009). See ante, at 6–12. As the
Court now recognizes, those cases did not set forth a test
that always and everywhere applies when the government
claims that its actions are immune to First Amendment
challenge under the government-speech doctrine. And
treating those factors as a test obscures the real question in
government-speech cases: whether the government is
speaking instead of regulating private expression.
I
The government-speech doctrine recognizes that the Free
Speech Clause of the First Amendment “restricts govern-
ment regulation of private speech” but “does not regulate
2 SHURTLEFF v. BOSTON
ALITO, J., concurring in judgment
government speech.” Summum, 555 U. S., at 467. That
doctrine presents no serious problems when the govern-
ment speaks in its own voice—for example, when an official
gives a speech in a representative capacity or a governmen-
tal body issues a report. But courts must be very careful
when a government claims that speech by one or more pri-
vate speakers is actually government speech. When that
occurs, it can be difficult to tell whether the government is
using the doctrine “as a subterfuge for favoring certain pri-
vate speakers over others based on viewpoint,” id., at 473,
and the government-speech doctrine becomes “susceptible
to dangerous misuse,” Matal v. Tam, 582 U. S. ___, ___–___
(2017) (slip op., at 13–14).
In Tam, for example, the United States defended a stat-
utory provision that permitted the Patent and Trademark
Office to deny federal registration to “disparag[ing]” marks,
15 U. S. C. §1052(a), on the theory that “the registration of
a trademark converts the mark into government speech.”
582 U. S., at ___ (slip op., at 17). We rejected that argument
and held that because the Government’s role in registration
was limited to applying a standard of assessment to marks
generated by private parties, registered marks are not gov-
ernment speech. Id., at ___–___ (slip op., at 12–14). But
the Government’s position had radical implications: If reg-
istration transforms trademarks into government speech,
the same logic would presumably hold for other speech in-
cluded on systems of government registration. Books on the
copyright registry, for example, would count as the Govern-
ment’s own speech—presumably subject to editorial con-
trol. And the Government would be free to exclude authors
from copyright protection based on their views. Id., at ___–
___ (slip op., at 17–18).
To prevent the government-speech doctrine from being
used as a cover for censorship, courts must focus on the
identity of the speaker. The ultimate question is whether
the government is actually expressing its own views or the
Cite as: 596 U. S. ____ (2022) 3
ALITO, J., concurring in judgment
real speaker is a private party and the government is sur-
reptitiously engaged in the “regulation of private speech.”
Summum, 555 U. S., at 467. But our precedent has never
attempted to specify a general method for deciding that
question, and the Court goes wrong in proceeding as though
our decisions in Walker and Summum settled on anything
that might be considered a “government-speech analysis.”
Ante, at 6. In both cases, we employed a fact-bound totality-
of-the-circumstances inquiry that relied on the factors that
appeared helpful in evaluating whether the speech at issue
was government or private speech. See Walker, 576 U. S.,
at 210–213; Summum, 555 U. S., at 470–478. We did not
set out a test to be used in all government-speech cases, and
we did not purport to define an exhaustive list of relevant
factors. And in light of the ultimate focus of the govern-
ment-speech inquiry, each of the factors mentioned in those
cases could be relevant only insofar as it sheds light on the
identity of the speaker. When considered in isolation from
that inquiry, the factors central to Walker and Summum
can lead a court astray.
Consider first “the extent to which the government has
actively shaped or controlled the expression.” Ante, at 6.
Government control over speech is relevant to speaker iden-
tity in that speech by a private individual or group cannot
constitute government speech if the government does not
attempt to control the message. But control is also an es-
sential element of censorship. Consider this example. The
British Licensing Act of 1737, 10 Geo. II c. 28, §1, in 17 Eng.
Stat. at Large 140 (1765), as amended by the Theatres Act
of 1843, 6 & 7 Vict. c. 68, §2 (1843), prohibited the perfor-
mance of any “interlude, tragedy, comedy, opera, play,
farce, or other entertainment” without a patent issued by
the King of England or a “License from the Lord Chamber-
lain of Her Majesty’s Household.” Ibid. This regime at-
tracted criticism precisely because it gave the Lord Cham-
berlain extensive “control over the nature and content,”
4 SHURTLEFF v. BOSTON
ALITO, J., concurring in judgment
ante, at 6, of covered performances. One of the leading crit-
ics of the Act—the playwright George Bernard Shaw—was
denied permission to perform several plays, including Mrs.
Warren’s Profession, The Shewing-up of Blanco Posnet, and
Press Cuttings.1 But had the Lord Chamberlain approved
these plays, would anyone seriously maintain that those
plays were thereby transmuted into the government’s
speech?
As this illustration shows, neither “control” nor “final ap-
proval authority” can in itself distinguish government
speech from censorship of private speech, and analyzing
that factor in isolation from speaker identity flattens the
distinction between government speech and speech toler-
ated by the censor. And it is not as though “actively” exer-
cising control over the “nature and content” of private ex-
pression makes a difference, as the Court suggests, ibid.
Censorship is not made constitutional by aggressive and di-
rect application.
Next, turn to the history of the means of expression. Ibid.
Historical practice can establish that a means of expression
“typically represent[s] government speech.” Summum, 555
U. S., at 470 (emphasis added); Tam, 582 U. S., at ___ (slip
op., at 17). But in determining whether speech is the gov-
ernment’s, the real question is not whether a form of ex-
pression is usually linked with the government but whether
the speech at issue expresses the government’s own mes-
sage. Governments can put public resources to novel uses.
And when governments allow private parties to use a re-
source normally devoted to government speech to express
their own messages, the government cannot rely on histor-
ical expectations to pass off private speech as its own. Cf.
Summum, 555 U. S., at 480 (explaining that even though
monuments in parks are normally government speech, that
——————
1 See generally L. Hugo, Edwardian Shaw: The Writer and His Age
197–230 (1999).
Cite as: 596 U. S. ____ (2022) 5
ALITO, J., concurring in judgment
would not be true if “a town created a monument on which
all of its residents (or all those meeting some other crite-
rion) could place the name of a person to be honored or some
other private message”).
This case exemplifies the point. Governments have long
used flags to express government messages, so this factor
provides prima facie support for Boston’s position under the
Court’s mode of analysis. Ante, at 7–9. But on these facts,
the history of flags clearly cannot have any bearing on
whether the flag displays express the City’s own message.
The City put the flagpoles to an unorthodox use—allowing
private parties to use the poles to express messages that
were not formulated by City officials. Treating this factor
as significant in that circumstance loads the dice in favor of
the government’s position for no obvious reason.
Now consider the third factor: “the public’s likely percep-
tion as to who (the government or a private person) is
speaking.” Ante, at 6. Our earlier government-speech prec-
edents recognized that “the correct focus” of the govern-
ment-speech inquiry “is not on whether the . . . reasonable
viewer would identify the speech as the government’s,” Jo-
hanns v. Livestock Marketing Assn., 544 U. S. 550, 564, n. 7
(2005), and with good reason. Unless the public is assumed
to be omniscient, public perception cannot be relevant to
whether the government is speaking, as opposed merely ap-
pearing to speak. Focusing on public perception encourages
courts to categorize private expression as government
speech in circumstances in which the public is liable to
misattribute that speech to the government. This case once
again provides an apt illustration. As the Court rightly
notes, “[a] passerby on Cambridge Street” confronted with
a flag flanked by government flags standing just outside the
entrance of Boston’s seat of government would likely con-
clude that all of those flags “conve[y] some message on the
government’s behalf.” Ante, at 9 (internal quotation marks
6 SHURTLEFF v. BOSTON
ALITO, J., concurring in judgment
omitted). If that is the case, this factor supports the exclu-
sion of private parties from using the flagpoles even though
the government allows private parties to use the flagpoles
to express private messages, presumably because those
messages may be erroneously attributed to the government.
But there is no obvious reason why a government should be
entitled to suppress private views that might be attributed
to it by engaging in viewpoint discrimination. The govern-
ment can always disavow any messages that might be mis-
takenly attributed to it.
The factors relied upon by the Court are thus an uncer-
tain guide to speaker identity. But beyond that, treating
these factors as a freestanding test for the existence of gov-
ernment speech artificially separates the question whether
the government is speaking from whether the government
is facilitating or regulating private speech. Under the
Court’s factorized approach, government speech occurs
when the government exercises a “sufficient” degree of con-
trol over speech that occurs in a setting connected with gov-
ernment speech in the eyes of history and the contemporary
public, regardless of whether the government is actually
merely facilitating private speech. This approach allows
governments to exploit public expectations to mask censor-
ship.
And like any factorized analysis, this approach cannot
provide a principled way of deciding cases. The Court’s
analysis here proves the point. The Court concludes that
two of the three factors—history and public perception—fa-
vor the City. But it nonetheless holds that the flag displays
did not constitute government speech. Why these factors
drop out of the analysis—or even do not justify a contrary
conclusion—is left unsaid. This cannot be the right way to
determine when governmental action is exempt from the
First Amendment.
Cite as: 596 U. S. ____ (2022) 7
ALITO, J., concurring in judgment
II
A
I would resolve this case using a different method for de-
termining whether the government is speaking. In my
view, the minimum conditions that must be met for expres-
sion to count as “government speech” can be identified by
considering the definition of “government speech” and the
rationale for the government-speech doctrine. Under the
resulting view, government speech occurs if—but only if—
a government purposefully expresses a message of its own
through persons authorized to speak on its behalf, and in
doing so, does not rely on a means that abridges private
speech.
Defined in literal terms, “government speech” is “speech”
spoken by the government. “Speech,” as that term is used
in our First Amendment jurisprudence, refers to expressive
activity that is “intended to be communicative” and, “in con-
text, would reasonably be understood . . . to be communica-
tive.” Clark v. Community for Creative Non-Violence, 468
U. S. 288, 294 (1984); see also Hurley v. Irish-American
Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S
557, 569 (1995). Our government-speech precedents have
worked with largely the same definition. See, e.g., Sum-
mum, 555 U. S., at 472 (accepting monument for placement
in a city park “constitute[d] government speech” because
the monuments were “meant to convey and have the effect
of conveying a government message”); Walker, 576 U. S., at
214 (similar). And although this definition of “speech” is
not fully precise, the purposeful communication of the
speaker’s own message generally qualifies as “speech.”
For “speech” to be spoken by the government, the rele-
vant act of communication must be government action.
Governments are not natural persons and can only com-
municate through human agents who have been given the
power to speak for the government. When individuals
charged with speaking on behalf of the government act
8 SHURTLEFF v. BOSTON
ALITO, J., concurring in judgment
within the scope of their power to do so, they “are not speak-
ing as citizens for First Amendment purposes.” Garcetti v.
Ceballos, 547 U. S. 410, 421 (2006). And because “speech”
requires the purposeful communication of the speaker’s
own message, the message expressed must have been for-
mulated by a person with the power to determine what mes-
sages the government will communicate. In short, the gov-
ernment must “se[t] the overall message to be
communicated” through official action. Johanns, 544 U. S.,
at 562.
Government speech is thus the purposeful communica-
tion of a governmentally determined message by a person
exercising a power to speak for a government. But not all
governmental activity that qualifies as “government
speech” in this literal and factual sense is exempt from First
Amendment scrutiny. For although we have said that the
Free Speech Clause “has no application” when a govern-
ment is “engaging in [its] own expressive conduct,” Sum-
mum, 555 U. S., at 467, we have also recognized that “the
Free Speech Clause itself may constrain the government’s
speech” under certain conditions, as when a “government
seeks to compel private persons to convey the government’s
speech.” Walker, 576 U. S., at 208; see also Wooley v.
Maynard, 430 U. S. 705 (1977); West Virginia Bd. of Ed. v.
Barnette, 319 U. S. 624 (1943).
That is because the government-speech doctrine is not
based on the view—which we have neither accepted nor re-
jected—that governmental entities have First Amendment
rights. See United States v. American Library Assn., Inc.,
539 U. S. 194, 210–211 (2003); Columbia Broadcasting Sys-
tem, Inc. v. Democratic National Committee, 412 U. S. 94,
139, and n. 7 (1973) (Stewart, J., concurring).2 Instead, the
——————
2 The text of the First Amendment also seems to exclude the possibility
that the Federal Government has a constitutional right to speak, since it
prohibits “Congress” and other federal entities and actors from “abridg-
ing the freedom of speech.” A different analysis might be called for in a
Cite as: 596 U. S. ____ (2022) 9
ALITO, J., concurring in judgment
doctrine is based on the notion that governmental commu-
nication—and the exercise of control over those charged by
law with implementing a government’s communicative
agenda—do not normally “restrict the activities of . . . per-
sons acting as private individuals.” Rust v. Sullivan, 500
U. S. 173, 198–199 (1991); see also Summum, 555 U. S., at
467 (“The Free Speech Clause restricts government regula-
tion of private speech”); Rosenberger v. Rector and Visitors
of Univ. of Va., 515 U. S. 819, 833–835 (1995). So govern-
ment speech in the literal sense is not exempt from First
Amendment attack if it uses a means that restricts private
expression in a way that “abridges” the freedom of speech,
as is the case with compelled speech. Were it otherwise,
virtually every government action that regulates private
speech would, paradoxically, qualify as government speech
unregulated by the First Amendment. Naked censorship of
a speaker based on viewpoint, for example, might well con-
stitute “expression” in the thin sense that it conveys the
government’s disapproval of the speaker’s message. But
plainly that kind of action cannot fall beyond the reach of
the First Amendment.
It follows that to establish that expression constitutes
government speech exempt from First Amendment attack,
the government must satisfy two conditions. First, it must
show that the challenged activity constitutes government
speech in the literal sense—purposeful communication of a
governmentally determined message by a person acting
within the scope of a power to speak for the government.
Second, the government must establish it did not rely on a
——————
case in which the Federal Government attempts to restrict the speech of
another sovereign. If the States had First Amendment rights against
the Federal Government at the time of ratification, it is not obvious why
that right would be eliminated by the incorporation of the speech rights
of private citizens against the States through the Fourteenth Amend-
ment.
10 SHURTLEFF v. BOSTON
ALITO, J., concurring in judgment
means that abridges the speech of persons acting in a pri-
vate capacity. It is only then that “the Free Speech Clause
has no application.” Summum, 555 U. S., at 467.
This framework explains the conditions under which gov-
ernment communication that relies on private parties can
constitute government speech. Our precedents recognize
two ways in which a government can speak using private
assistance. First, the government can prospectively “en-
lis[t] private entities to convey its own message,” Rosen-
berger, 515 U. S., at 833, by deputizing private persons as
its agents. See Johanns, 544 U. S., at 560–562, and n. 4;
Rust, 500 U. S., at 192–200. In that kind of situation, pri-
vate persons assume a public or quasi-public capacity that
empowers them to speak on behalf of the government. So
long as this responsibility is voluntarily assumed, speech by
a private party within the scope of his power to speak for
the government constitutes government speech.
Second, the government can “adop[t]” a medium of ex-
pression created by a private party and use it to express a
government message. Summum, 555 U. S., at 473–474. In
that circumstance, private parties are not deputized by the
government; instead a private person generates a medium
of expression and transfers it to the government. Id., at
472–474. For the adopted expression to qualify as the gov-
ernment’s, the private party must alienate control over the
medium of expression to the government. And government
actors must put the medium to use to intentionally express
a government message. Compare id., at 473–475 (holding
that a government adopted donated monument because it
“took ownership of that monument and put it on permanent
display in a park that it owns and manages”), with Tam,
582 U. S., at ___, ___–___ (slip op., at 5, 12–15) (no adoption
occurred because governments neither produced nor took
ownership of privately generated trademarks). Otherwise,
the government is simply providing a forum for private par-
ties to submit their own productions and usual First
Cite as: 596 U. S. ____ (2022) 11
ALITO, J., concurring in judgment
Amendment principles apply. And to avoid running afoul
of the prohibition on compelled speech, that alienation must
be voluntary.3
This approach also explains the circumstances in which
we have concluded that the government is not speaking.
We have repeatedly held that the government-speech doc-
trine does not extend to private-party speech that is merely
subsidized or otherwise facilitated by the government. See,
e.g., Legal Services Corporation v. Velazquez, 531 U. S. 533,
542 (2001); Board of Regents of Univ. of Wis. System v.
Southworth, 529 U. S. 217, 229 (2000); Rosenberger, 515
U. S., at 833–834. Facilitating speech by private persons
cannot constitute government speech unless the govern-
ment assigns a power to speak to those persons or appropri-
ates the products of their expressive activity to express its
own message. When the government’s role is limited to ap-
plying a standard of assessment to determine a speaker’s
eligibility for a benefit, the government is regulating pri-
vate speech, and ordinary First Amendment principles ap-
ply. Tam, 582 U. S., at ___–___ (slip op., at 13–14).
For analogous reasons, private-party expression in any
type of forum recognized by our precedents does not consti-
tute government speech. A forum, by definition, is a space
——————
3 The place of Walker within this framework warrants comment. In
that case, properly understood, the government claimed to have adopted
specialty-license-plate designs submitted by private parties and actually
did “ow[n] the designs on its license plates,” Walker v. Texas Div., Sons
of Confederate Veterans, Inc., 576 U. S. 200, 212 (2015). But it was not
obvious how designs such as “Rather Be Golfing” could possibly express
a government message. Id., at 222 (ALITO, J., dissenting). In other
words, although the private parties alienated control over the plate de-
signs, the government did not have any purpose to communicate, and
instead allowed private parties to use personal plates to communicate
their own messages. This expansive understanding of government
speech by adoption should be confined to government-issued IDs. As we
have said, Walker “likely marks the outer bounds of the government-
speech doctrine.” Matal v. Tam, 582 U. S. ___, ___ (2017) (slip op., at 17).
12 SHURTLEFF v. BOSTON
ALITO, J., concurring in judgment
for private parties to express their own views. The govern-
ment can of course speak as a participant in a forum, but
the creation of a space for private discourse does not involve
expressing a governmental message, deputizing private
parties to express it, or adopting a private party’s contribu-
tion as a vehicle of government speech. So when examina-
tion of the government’s “policy and practice” indicates that
the government has “intentionally open[ed] a nontradi-
tional forum for public discourse,” a court may immediately
infer that private-party expression in the forum is not gov-
ernment speech. Cornelius v. NAACP Legal Defense & Ed.
Fund, Inc., 473 U. S. 788, 802 (1985). There is no need to
consider history, public perception, or control in the ab-
stract.
B
Analyzed under this framework, the flag displays were
plainly private speech within a forum created by the City,
not government speech. The record attests that the City’s
application materials—which were the only written form of
guidance available on the program prior to the adoption of
a written policy in 2018—characterized the flagpoles as one
of the City’s “public forums.” App. to Pet. for Cert. 137a.
The application guidelines did not enumerate any criteria
for access to the flagpoles that go beyond those typical of a
resource that has been made generally available to the pub-
lic. Id., at 137a–140a. The first rejection of an application
was the denial of Camp Constitution’s application in 2017.
Id., at 150a–158a. Prior to then, the City never rejected any
request to raise a flag submitted by any private party. And
private speakers accounted for 78% of the flag-raising ap-
plicants. See Reply Brief 8.
A program with this design cannot possibly constitute
government speech. The City did nothing to indicate an in-
tent to communicate a message. Clark, 468 U. S., at 294.
Nor did it deputize private speakers or appropriate private-
Cite as: 596 U. S. ____ (2022) 13
ALITO, J., concurring in judgment
party expressive content. The flags flown reflected a dizzy-
ing and contradictory array of perspectives that cannot be
understood to express the message of a single speaker. For
example, the City allowed parties to fly the gay pride flag,
App. to Pet. for Cert. 142a, but it allowed others to fly the
flag of Ethiopia, id., at 174a, a country in which “homosex-
ual act[s]” are punishable by “imprisonment for not less
than one year.” The Crim. Code of Fed. Democratic Repub-
lic of Eth. 2004, Arts. 629 and 630, Proclamation No.
414/2004. Indeed, the City disclaimed virtually all mes-
sages expressed by characterizing the flagpoles as a “public
forum” and adopting access criteria consistent with gener-
alized public use. The City’s policy and practice thus
squarely indicate an intent to open a public forum for any
private speakers who met the City’s basic criteria. The re-
quirement of viewpoint neutrality applies to any forum of
this kind. Cornelius, 473 U. S., at 802.
As the Court rightly holds, denying Shurtleff ’s applica-
tion to use that forum constituted impermissible viewpoint
discrimination. Ante, at 12–13. The City’s stated reason
for rejecting Camp Constitution’s application was an un-
written “policy and practice” of “ ‘refrain[ing] from flying
non-secular flags on the City Hall flagpoles.’ ” App. to Pet.
for Cert. 153a–154a. But as we have recognized, religion
constitutes a viewpoint, and “speech discussing otherwise
permissible subjects cannot be excluded from a limited pub-
lic forum on the ground that the subject is discussed from a
religious point of view.” Good News Club v. Milford Central
School, 533 U. S. 98, 112 (2001); Rosenberger, 515 U. S., at
835.
The City’s decision was grounded in a belief that “[e]stab-
lished First Amendment jurisprudence” prohibits a govern-
ment from allowing a private party to “fly a [r]eligious flag
on public property.” App. to Pet. for Cert. 153a–154a. But
“[m]ore than once,” this Court has “rejected the position
14 SHURTLEFF v. BOSTON
ALITO, J., concurring in judgment
that the Establishment Clause even justifies, much less re-
quires, a refusal to extend free speech rights to religious
speakers who participate in broad-reaching government
programs neutral in design.” Rosenberger, 515 U. S., at
839; see also Good News Club, 533 U. S., at 112; Lamb’s
Chapel v. Center Moriches Union Free School Dist., 508
U. S. 384 (1993). Indeed, excluding religious messages from
public forums that are open to other viewpoints is a “denial
of the right of free speech” indicating “hostility to religion”
that would “undermine the very neutrality the Establish-
ment Clause requires.” Rosenberger, 515 U. S., at 845–846;
see also Board of Ed. of Westside Community Schools (Dist.
66) v. Mergens, 496 U. S. 226, 248 (1990) (plurality opinion).
Although developments in City policy postdating the de-
nial of Shurtleff ’s application are not relevant to whether
that act constituted a First Amendment violation, it should
be emphasized that the City’s adoption of a written policy
in October 2018 did not to convert the flag displays into gov-
ernment speech. The policy’s principal provision specified
that the City will not “display flags deemed to be inappro-
priate or offensive in nature or those supporting discrimi-
nation, prejudice, or religious” viewpoints. App. in No. 20–
1158 (CA1), p. 570 (App).4 That provision did not identify a
——————
4 The policy included six other rules specifying that: (1) flag raisings
must occur on “a normal business work day, generally between the hours
of 10:00 am and 3:00 pm”; (2) flag raisings must be open to the public and
“[g]uests must adhere to the City of Boston policy not to discriminate on
the basis of sex, race, religion, etc.”; (3) guests must deliver the “guest
flag” to City personnel before the raising and retrieve it after; (4) events
must be consistent with the City’s “sustainability” policy; (5) flags may
be lowered to comply with the U. S. Flag Code; and (6) flags will normally
be flown for 24 hours or fewer. App. 570. These criteria do not suggest
purposeful communication of a government message. The policy also re-
served “sole and complete discretion” to refuse to fly any flag. Id., at 569.
But this reservation unbridled discretionary control over access to a gov-
ernment-owned medium of expression cannot establish that a speaker
permitted to speak through the medium is speaking for the government.
Cite as: 596 U. S. ____ (2022) 15
ALITO, J., concurring in judgment
message the City intended to express; it simply codified the
City’s prior exclusion of speakers expressing a “religious
viewpoint” and extended it to messages deemed “offensive,”
despite the “bedrock First Amendment principle” that
“[s]peech may not be banned on the ground that it expresses
ideas that offend.” Tam, 582 U. S., at ___–___ (slip op., at
1–2).
In briefing before this Court, counsel for the City argued
that despite all appearances to the contrary, the City actu-
ally did intend to express a message through the flag-rais-
ing program: The City’s support for “the diverse national
heritage of the City’s population.” Brief for Respondents 19.
All other flag raisings, the City claims, occurred “in connec-
tion with some publicly designated date of observance.”
Ibid. This argument is a transparent attempt to reverse
engineer a governmental message from facts about the flag
raisings that occurred. It is true that many of the flag rais-
ings from 2007 to 2015 celebrated nationalities. App. to
Pet. for Cert. 173a–187a. But these events were conducted
by private organizations to express their own support for
the relevant national communities. Neither the City’s ap-
plication guidance nor the 2018 written policy singled out a
connection with a nationality commemoration as a condi-
tion of access to the flagpoles. The City never cited this
purported requirement in its rejection of the applications it
denied. And the City approved flags that had nothing to do
with nationality or official holidays, such as the “Metro
Credit Union Flag Raising” mentioned by the Court.
Even if the City had reserved the flagpoles for nationality
commemorations and official holidays, that would only
mean that the City had reserved the flagpoles “for certain
groups or for the discussion of certain topics” and created a
nonpublic forum, not that it had engaged in government
——————
Instead, such discretionary authority is a hallmark of a standardless sys-
tem of censorship.
16 SHURTLEFF v. BOSTON
ALITO, J., concurring in judgment
speech. Rosenberger, 515 U. S., at 829; see also Perry Ed.
Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 49
(1983) (“Implicit in the concept of the nonpublic forum is the
right to make distinctions in access on the basis of subject
matter and speaker identity”). Had the City restricted use
of the flagpoles to these subject matters, it could have relied
on the forum’s topical limitations to deny applications to
host events. But it could not have employed viewpoint-dis-
criminatory criteria to bar otherwise-eligible speakers from
expressing their own views on those subjects.
On this record, however, the only viable inference is that
the City had no policy restricting access to the forum apart
from the modest access conditions articulated in the appli-
cation materials. Having created a forum with those char-
acteristics, the City could not reject Shurtleff ’s application
on account of the religious viewpoint he intended to express.
For that reason, I agree with the Court’s ultimate conclu-
sion and concur in the judgment.
Cite as: 596 U. S. ____ (2022) 1
GORSUCH
GORSUCH , J., concurring
, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–1800
_________________
HAROLD SHURTLEFF, ET AL., PETITIONERS v. CITY
OF BOSTON, MASSACHUSETTS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[May 2, 2022]
JUSTICE GORSUCH, with whom JUSTICE THOMAS joins,
concurring in the judgment.
The real problem in this case doesn’t stem from Boston’s
mistake about the scope of the government speech doctrine
or its error in applying our public forum precedents. The
trouble here runs deeper than that. Boston candidly admits
that it refused to fly the petitioners’ flag while allowing a
secular group to fly a strikingly similar banner. And the
city admits it did so for one reason and one reason only: It
thought displaying the petitioners’ flag would violate “ ‘the
[C]onstitution’s [E]stablishment [C]lause.’ ” App. to Pet. for
Cert. 157a; see also id., at 153a–154a. That decision led
directly to this lawsuit, all the years of litigation that fol-
lowed, and the city’s loss today. Not a single Member of the
Court seeks to defend Boston’s view that a municipal policy
allowing all groups to fly their flags, secular and religious
alike, would offend the Establishment Clause.
How did the city get it so wrong? To be fair, at least some
of the blame belongs here and traces back to Lemon v.
Kurtzman, 403 U. S. 602 (1971). Issued during a “ ‘bygone
era’ ” when this Court took a more freewheeling approach to
interpreting legal texts, Food Marketing Institute v. Argus
Leader Media, 588 U. S. ___, ___ (2019) (slip op., at 8),
Lemon sought to devise a one-size-fits-all test for resolving
Establishment Clause disputes. That project bypassed any
2 SHURTLEFF v. BOSTON
GORSUCH
GORSUCH , J., concurring
, J., concurring in judgment
inquiry into the Clause’s original meaning. It ignored
longstanding precedents. And instead of bringing clarity to
the area, Lemon produced only chaos. In time, this Court
came to recognize these problems, abandoned Lemon, and
returned to a more humble jurisprudence centered on the
Constitution’s original meaning. Yet in this case, the city
chose to follow Lemon anyway. It proved a costly decision,
and Boston’s travails supply a cautionary tale for other lo-
calities and lower courts.
*
To see how all this unfolded, start with Lemon itself.
Lemon held out the promise that any Establishment Clause
dispute could be resolved by following a neat checklist fo-
cused on three questions: (1) Did the government have a
secular purpose in its challenged action? (2) Does the effect
of that action advance or inhibit religion? (3) Will the gov-
ernment action “excessive[ly] . . . entangl[e]” church and
state? 403 U. S., at 612–613 (internal quotation marks
omitted). But from the start, this seemingly simple test
produced more questions than answers. How much
religion-promoting purpose is too much? Are laws that
serve both religious and secular purposes problematic?
How much of a religion-advancing effect is tolerable? What
does “excessive entanglement” even mean, and what (if an-
ything) does it add to the analysis? Putting it all together,
too, what is a court to do when Lemon’s three inquiries point
in conflicting directions? More than 50 years later, the an-
swers to all these questions remain unknown.
The only sure thing Lemon yielded was new business for
lawyers and judges. Before Lemon, this Court had never
held a flag or other similar public display to constitute an
unconstitutional “establishment” of religion. See Congres-
sional Research Service, C. Brougher, Public Display of the
Ten Commandments and Other Religious Symbols 1–2
(2011) (Brougher); M. McConnell, No More (Old) Symbol
Cite as: 596 U. S. ____ (2022) 3
GORSUCH
GORSUCH , J., concurring
, J., concurring in judgment
Cases, 2019 Cato Sup. Ct. Rev. 91 (2019) (Symbol Cases).
After Lemon, cases challenging public displays under the
Establishment Clause came fast and furious. And just like
the test itself, the results proved a garble. May a State or
local government display a Christmas nativity scene? Some
courts said yes, others no.1 How about a menorah? Again,
the answers ran both ways.2 What about a city seal that
features a cross? Good luck.3
If anything, the confusion grew with time. In the years
following Lemon, this Court modified its “effects” test by re-
quiring lower courts to ask whether a “reasonable observer”
would consider the government’s challenged action to be an
“endorsement” of religion. See, e.g., County of Allegheny v.
American Civil Liberties Union, Greater Pittsburgh Chap-
ter, 492 U. S. 573, 593 (1989); id., at 630 (O’Connor, J., con-
curring in part and concurring in judgment). But rather
than fix Lemon’s problems, this new gloss compounded
them. Some argued that any reasonable observer worthy of
the name would consider all the relevant facts and law, just
as a judge or jury must. See Capitol Square Review and
Advisory Bd. v. Pinette, 515 U. S. 753, 778–781 (1995)
(O’Connor, J., concurring in part). Others suggested that a
reasonable observer could make mistakes about the law or
fail to consider all the facts. See, e.g., American Atheists,
Inc. v. Duncan, 616 F. 3d 1145, 1160–1161 (CA10 2010).
And that suggestion only raised even more questions. Just
——————
1 Compare Lynch v. Donnelly, 465 U. S. 668, 671–672 (1984) (yes), and
American Civil Liberties Union of Ky. v. Wilkinson, 895 F. 2d 1098, 1099–
1100, 1104 (CA6 1990) (yes), with County of Allegheny v. American Civil
Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 578–579
(1989) (no), and Smith v. County of Albemarle, 895 F. 2d 953, 955, 958–
960 (CA4 1990) (no).
2 Compare Allegheny, 492 U. S., at 578–581 (yes), and Skoros v. New
York, 437 F. 3d 1, 3–4 (CA2 2006) (yes), with Kaplan v. Burlington, 891
F. 2d 1024, 1025–1026, 1030–1031 (CA2 1989) (no).
3 Compare Murray v. Austin, 947 F. 2d 147, 149 (CA5 1991) (yes), with
Harris v. Zion, 927 F. 2d 1401, 1402 (CA7 1991) (no).
4 SHURTLEFF v. BOSTON
GORSUCH
GORSUCH , J., concurring
, J., concurring in judgment
how mistake-prone might an observer be and still qualify
as reasonable? On what authority may courts exercise the
awesome power of judicial review to declare a duly enacted
law unconstitutional thanks only to (admitted) errors about
the relevant facts or law? See American Atheists, Inc. v.
Davenport, 637 F. 3d 1095, 1108–1110 (CA10 2010) (Gor-
such, J., dissenting from denial of rehearing en banc).
Ultimately, Lemon devolved into a kind of children’s
game. Start with a Christmas scene, a menorah, or a flag.
Then pick your own “reasonable observer” avatar. In this
game, the avatar’s default settings are lazy, uninformed
about history, and not particularly inclined to legal re-
search. His default mood is irritable. To play, expose your
avatar to the display and ask for his reaction. How does he
feel about it? Mind you: Don’t ask him whether the pro-
posed display actually amounts to an establishment of reli-
gion. Just ask him if he feels it “endorses” religion. If so,
game over.
Faced with such a malleable test, risk-averse local offi-
cials found themselves in an ironic bind. To avoid Estab-
lishment Clause liability, they sometimes felt they had to
discriminate against religious speech and suppress reli-
gious exercises. But those actions, in turn, only invited lia-
bility under other provisions of the First Amendment. The
hard truth is, Lemon’s abstract and ahistoric test put “[p]ol-
icymakers . . . in a vise between the Establishment Clause
on one side and the Free Speech and Free Exercise Clauses
on the other.” Pinette, 515 U. S., at 767–768 (plurality opin-
ion).
Our case illustrates the problem. The flags of many na-
tions bear religious symbols. So do the flags of various pri-
vate groups. Historically, Boston has allowed them all. The
city has even flown a flag with a cross nearly identical in
size to the one on petitioners’ flag. It was a banner pre-
sented by a secular group to commemorate the Battle of
Bunker Hill. See Appendix, infra (photographs). Yet when
Cite as: 596 U. S. ____ (2022) 5
GORSUCH
GORSUCH , J., concurring
, J., concurring in judgment
the petitioners offered their flag, the city flinched. Perhaps
it worried: Would the assigned judge’s imagined “reasona-
ble observer” bother to learn about its generous policy for
secular groups? Would this observer take the trouble to
consult the long tradition in this country allowing compa-
rable displays? Or would he turn out to be an uninformed
passerby offended by the seeming incongruity of a new flag
flying beside those of the city, State, and Nation? Who
could tell. Better to err on the safe side and reject the peti-
tioners’ flag. As it turned out, though, that route only in-
vited years of litigation and a unanimous adverse decision
because no government may discriminate against religious
speech in a public forum. To avoid a spurious First Amend-
ment problem, Boston wound up inviting a real one. Call it
a Lemon trade.4
*
While it is easy to see how Lemon led to a strange world
in which local governments have sometimes violated the
First Amendment in the name of protecting it, less clear is
why this state of affairs still persists. Lemon has long since
——————
4 It seems possible, too, that these spurious Establishment Clause con-
cerns embolden government officials to treat religion with hostility even
when they don’t rely on Lemon by name. Sometimes colleges seek to
prevent students from engaging in religious speech, labeling expressions
of faith “fighting words.” See Uzuegbunam v. Preczewski, 592 U. S. ___,
___–___ (2021) (slip op., at 1–3). Certain public transit systems that sell
advertising space on trains and buses ban religious messages. See Arch-
diocese of Washington v. Washington Metropolitan Area Transit Author-
ity, 589 U. S. ___, ___–___ (2020) (GORSUCH, J., respecting denial of cer-
tiorari) (slip op., at 1–2); Northeastern Pa. Freethought Soc. v. County of
Lackawanna Transit Sys., 938 F. 3d 424, 428–431 (CA3 2019). And some
governments seek to exclude religious groups from using public facilities
or designations available to others. See InterVarsity Christian Fellow-
ship/USA v. University of Iowa, 5 F. 4th 855, 860–862 (CA8 2021); Bronx
Household of Faith v. Board of Ed., 750 F. 3d 184, 192 (CA2 2014). All
of these trades resulted in less First Amendment protection and more
needless litigation.
6 SHURTLEFF v. BOSTON
GORSUCH
GORSUCH , J., concurring
, J., concurring in judgment
been exposed as an anomaly and a mistake.
From the birth of modern Establishment Clause litiga-
tion in Everson v. Board of Ed. of Ewing, this Court looked
primarily to historical practices and analogues to guide its
analysis. 330 U. S. 1, 9–15 (1947). So, for example, while
the dissent in Everson disagreed with some of the majority’s
conclusions about what qualifies as an establishment of re-
ligion, it readily agreed that “[n]o provision of the Constitu-
tion is more closely tied to or given content by its generating
history than the religious clause of the First Amendment.”
Id., at 33–49 (Rutledge, J., dissenting). This approach fit,
too, with this Court’s usual course in other areas. Often, we
have looked to early and long-continued historical practices
as evidence of the Constitution’s meaning at the time of its
adoption.5 And, in the years following Everson, the Court
followed this same path when interpreting the Establish-
ment Clause. Agree or disagree with the conclusions in
these cases, there can be little doubt that the Court ap-
proached them in large part using history as its guide.6
——————
5 See, e.g., McDonald v. Chicago, 561 U. S. 742, 767–770 (2010); Giles
v. California, 554 U. S. 353, 358 (2008); see also The Pocket Veto Case,
279 U. S. 655, 689 (1929).
6 See, e.g., Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 680
(1970) (upholding tax exemptions for churches because they were sup-
ported by “more than a century of our history and uninterrupted prac-
tice”); School Dist. of Abington Township v. Schempp, 374 U. S. 203, 294
(1963) (Brennan, J., concurring) (“[T]he line we must draw between the
permissible and the impermissible is one which accords with history and
faithfully reflects the understanding of the Founding Fathers”);
McGowan v. Maryland, 366 U. S. 420, 437–440 (1961) (assessing “the
place of Sunday Closing Laws in the First Amendment’s history”); Tor-
caso v. Watkins, 367 U. S. 488, 490 (1961) (concluding that religious-test
oaths were one of the elements of “the formal or practical” religious es-
tablishments that “many of the early colonists left Europe and came here
hoping to” avoid). JUSTICE THOMAS has raised important questions about
this Court’s incorporation of the Establishment Clause against the
States in these cases. But “[e]ven assuming” incorporation, the Clause
“would only protect against an ‘establishment’ of religion as understood
at the founding.” Espinoza v. Montana Dept. of Revenue, 591 U. S. ___,
Cite as: 596 U. S. ____ (2022) 7
GORSUCH
GORSUCH , J., concurring
, J., concurring in judgment
Lemon interrupted this long line of precedents. It offered
no plausible reason for ignoring their teachings. And, as we
have seen, the ahistoric alternative it offered quickly
proved both unworkable in practice and unsound in its re-
sults. Nor is it as if Lemon vanquished the field even during
its heyday. Often, this Court continued to look to history to
resolve certain Establishment Clause disputes outside the
context of religious displays.7 And several early decisions
applying Lemon were themselves rapidly overruled in part
or in whole.8 All of which in time led Justice after Justice
to conclude that Lemon was “flawed in its fundamentals,”
“unworkable in practice,” and “inconsistent with our history
and our precedents.” County of Allegheny, 492 U. S., at 655,
669 (Kennedy, J., concurring in judgment in part and dis-
senting in part).9
——————
___ (2020) (THOMAS, J., concurring) (slip op., at 2).
7 See, e.g., Marsh v. Chambers, 463 U. S. 783, 786 (1983) (surveying
history to determine that “[f]rom colonial times through the founding of
the Republic and ever since, the practice of legislative prayer has coex-
isted with the principles of disestablishment and religious freedom”).
8 See, e.g., Agostini v. Felton, 521 U. S. 203, 236 (1997) (overruling
School Dist. of Grand Rapids v. Ball, 473 U. S. 373 (1985), and Aguilar
v. Felton, 473 U. S. 402 (1985)); Mitchell v. Helms, 530 U. S. 793, 835
(2000) (plurality opinion) (overruling Wolman v. Walter, 433 U. S. 229(1977), and Meek v. Pittenger, 421 U. S. 349 (1975)).
9 See also, e.g., Salazar v. Buono, 559 U. S. 700, 720–721 (2010) (plu-
rality opinion of Kennedy, J., joined in full by ROBERTS, C. J., and in part
by ALITO, J.); Van Orden v. Perry, 545 U. S. 677, 699–700 (2005) (BREYER,
J., concurring) (noting “Lemon’s checkered career in the decisional law of
this Court” (internal quotation marks omitted)); id., at 692–693
(THOMAS, J., concurring) (“This case would be easy if the Court were will-
ing to abandon the inconsistent guideposts it has adopted for addressing
Establishment Clause challenges”); McCreary County v. American Civil
Liberties Union of Ky., 545 U. S. 844, 890 (2005) (Scalia, J., joined in full
by Rehnquist, C. J., and THOMAS, J., and in part by Kennedy, J., dissent-
ing) (“[A] majority of the Justices on the current Court . . . have, in sepa-
rate opinions, repudiated the brain-spun ‘Lemon test’ ”); Board of Ed. of
Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687, 720 (1994)
8 SHURTLEFF v. BOSTON
GORSUCH
GORSUCH , J., concurring
, J., concurring in judgment
Recognizing Lemon’s flaws, this Court has not applied its
test for nearly two decades. In Town of Greece v. Galloway,
this Court declined an invitation to use the Lemon test. See
572 U. S. 565, 577 (2014); Brief for Respondents in Town of
Greece v. Galloway, O. T. 2013, No. 12–696, pp. 58–60. In-
stead, the Court explained that the primary question in Es-
tablishment Clause cases is whether the government’s con-
duct “accords with history and faithfully reflects the
understanding of the Founding Fathers.” 572 U. S., at 577
(internal quotation marks omitted). The Court observed
that this form of analysis represents the rule rather than
“an exception” within the “Court’s Establishment Clause ju-
risprudence.” Id., at 575–577 (internal quotation marks
omitted).
In American Legion v. American Humanist Association
we underscored the message. 588 U. S. ___, ___ (2019) (plu-
rality opinion) (slip op., at 25). Again we expressly refused
to apply Lemon, this time in a challenge to a public dis-
play—the very kind of dispute Lemon’s test ushered into
existence and where it once held sway. 588 U. S., at ___–
___ (slip op., at 13–16). Again we explained that “[i]f the
Lemon Court thought that its test would provide a frame-
work for all future Establishment Clause decisions, its ex-
pectation has not been met.”10 Id., at ___ (slip op., at 13).
——————
(O’Connor, J., concurring in part and concurring in judgment); Commit-
tee for Public Ed. and Religious Liberty v. Regan, 444 U. S. 646, 671
(1980) (Stevens, J., dissenting) (disparaging “the sisyphean task of trying
to patch together the ‘blurred, indistinct, and variable barrier’ described
in Lemon”).
10 See also American Legion, 588 U. S., at ___ (THOMAS, J., concurring
in judgment) (slip op., at 7) (“[B]ecause the Lemon test is not good law,
we ought to say so”); id., at ___ (GORSUCH, J., concurring in judgment)
(slip op., at 7) (“Lemon was a misadventure. It sought a ‘grand unified
theory’ of the Establishment Clause but left us only a mess”); id., at ___
(KAVANAUGH, J., concurring) (slip op., at 1) (“As this case again demon-
strates, this Court no longer applies the old test articulated in Lemon”).
Cite as: 596 U. S. ____ (2022) 9
GORSUCH
GORSUCH , J., concurring
, J., concurring in judgment
And again we stressed that the right place to look for guid-
ance lies in “ ‘ “historical practices and understandings.” ’ ”
Id., at ___ (slip op., at 25) (quoting Town of Greece, 572
U. S., at 576).
*
With all these messages directing and redirecting the in-
quiry to original meaning as illuminated by history, why
did Boston still follow Lemon in this case? Why do other
localities and lower courts sometimes do the same thing, al-
lowing Lemon even now to “si[t] up in its grave and shuffl[e]
abroad”? Lamb’s Chapel v. Center Moriches Union Free
School Dist., 508 U. S. 384, 398 (1993) (Scalia, J., concur-
ring in judgment). There may be other contributing factors,
but let me address two.
First, it’s hard not to wonder whether some simply prefer
the policy outcomes Lemon can be manipulated to produce.
Just dial down your hypothetical observer’s concern with
facts and history, dial up his inclination to offense, and the
test is guaranteed to spit out results more hostile to religion
than anything a careful inquiry into the original under-
standing of the Constitution could sustain. Lemon may pro-
mote an unserious, results-oriented approach to constitu-
tional interpretation. But for some, that may be more a
virtue than a vice.
There is more than a little in the record before us to sug-
gest this line of thinking. As city officials tell it, Boston did
not want to “ ‘display flags deemed to be inappropriate or
offensive in nature or those supporting discrimination, prej-
udice, or religious movements.’ ” App. to Pet. for Cert. 160a.
Instead, the city wanted to celebrate only “a particular kind
of diversity.” Tr. of Oral Arg. 85–86. And if your policy goal
is to lump in religious speech with fighting words and ob-
scenity, if it is to celebrate only a “particular” type of diver-
sity consistent with popular ideology, the First Amendment
is not exactly your friend. Dragging Lemon from its grave
10 SHURTLEFF v. BOSTON
GORSUCH
GORSUCH , J., concurring
, J., concurring in judgment
may be your only chance.
To the extent this is why some still invoke Lemon today,
it reflects poorly on us all. Through history, the suppres-
sion of unpopular religious speech and exercise has been
among the favorite tools of petty tyrants. See Pinette, 515
U. S., at 760; Feldman v. United States, 322 U. S. 487, 501
(1944) (Black, J., dissenting). Our forebears resolved that
this Nation would be different. Here, they resolved, each
individual would enjoy the right to make sense of his rela-
tionship with the divine, speak freely about man’s place in
creation, and have his religious practices treated with re-
spect. See West Virginia Bd. of Ed. v. Barnette, 319 U. S.
624, 642 (1943). The day governments in this country for-
age for ways to abandon these foundational promises is a
dark day for the cause of individual freedom.
Besides, even for those whose policy ambitions run in this
direction, invoking Lemon is a myopic tactic. For as long as
the First Amendment means anything, government policies
that discriminate against religious speech and exercise will
only invite litigation and result in losses like Boston’s. To-
day’s case is just one more in a long line of reminders about
the costs associated with governmental efforts to discrimi-
nate against disfavored religious speakers. See Good News
Club v. Milford Central School, 533 U. S. 98, 120 (2001);
Lamb’s Chapel, 508 U. S., at 392–397; Rosenberger v. Rec-
tor and Visitors of Univ. of Va., 515 U. S. 819, 823–824,
845–846 (1995).
Second, it seems that Lemon may occasionally shuffle
from its grave for another and more prosaic reason. By de-
manding a careful examination of the Constitution’s origi-
nal meaning, a proper application of the Establishment
Clause no doubt requires serious work and can pose its
challenges. Lemon’s abstract three-part test may seem a
simpler and tempting alternative to busy local officials and
lower courts. But if this is part of the problem, it isn’t with-
out at least a partial remedy. For our constitutional history
Cite as: 596 U. S. ____ (2022) 11
GORSUCH
GORSUCH , J., concurring
, J., concurring in judgment
contains some helpful hallmarks that localities and lower
courts can rely on.
Beyond a formal declaration that a religious denomina-
tion was in fact the established church, it seems that
founding-era religious establishments often bore certain
other telling traits. See M. McConnell, Establishment and
Disestablishment at the Founding, Part I: Establishment
of Religion, 44 Wm. & Mary L. Rev. 2105, 2110–2112, 2131
(2003) (Establishment and Disestablishment). First, the
government exerted control over the doctrine and personnel
of the established church. Second, the government man-
dated attendance in the established church and punished
people for failing to participate. Third, the government
punished dissenting churches and individuals for their re-
ligious exercise. Fourth, the government restricted political
participation by dissenters. Fifth, the government provided
financial support for the established church, often in a way
that preferred the established denomination over other
churches. And sixth, the government used the established
church to carry out certain civil functions, often by giving
the established church a monopoly over a specific function.
See id., at 2131–2181. Most of these hallmarks reflect
forms of “coerc[ion]” regarding “religion or its exercise.” Lee
v. Weisman, 505 U. S. 577, 587 (1992); id., at 640 (Scalia,
J., dissenting); Van Orden, 545 U. S., at 693 (THOMAS, J.,
concurring).
These traditional hallmarks help explain many of this
Court’s Establishment Clause cases, too. This Court, for
example, has held unlawful practices that restrict political
participation by dissenters, including rules requiring public
officials to proclaim a belief in God. See Torcaso v. Watkins,
367 U. S. 488, 490 (1961). It has checked government ef-
forts to give churches monopolistic control over civil func-
tions. See Larkin v. Grendel’s Den, Inc., 459 U. S. 116, 127
(1982). At the same time, it has upheld nondiscriminatory
public financial support for religious institutions alongside
12 SHURTLEFF v. BOSTON
GORSUCH
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, J., concurring in judgment
other entities. See Espinoza v. Montana Dept. of Revenue,
591 U. S. ___, ___–___ (2020) (slip op., at 18–22); Trinity Lu-
theran Church of Columbia, Inc. v. Comer, 582 U. S. ___,
___–___ (2017) (slip op., at 14–15); Zelman v. Simmons-
Harris, 536 U. S. 639, 662–663 (2002). The thread running
through these cases derives directly from the historical
hallmarks of an establishment of religion—government
control over religion offends the Constitution, but treating
a church on par with secular entities and other churches
does not. See Establishment and Disestablishment 2205–
2208.
These historical hallmarks also help explain the result in
today’s case and provide helpful guidance for those faced
with future disputes like it. As a close look at these hall-
marks and our history reveals, “[n]o one at the time of the
founding is recorded as arguing that the use of religious
symbols in public contexts was a form of religious establish-
ment.” Symbol Cases 107. For most of its existence, this
country had an “unbroken history of official acknowledg-
ment by all three branches of government of the role of re-
ligion in American life.” Lynch, 465 U. S., at 674.11 In fact
and as we have seen, it appears that, until Lemon, this
Court had never held the display of a religious symbol to
——————
11 So, for example, when designing a seal for the new Nation in 1776,
Benjamin Franklin and Thomas Jefferson proposed a familiar Biblical
scene—Moses leading the Israelites across the Red Sea. J. Hutson, Re-
ligion and the Founding of the American Republic 50–51 (1998) (Hutson).
The seal ultimately adopted by Congress in 1782 features “the Eye of
Providence” surrounded by “glory” above the motto Annuit Coeptis—“He
[God] has favored our undertakings.” Dept. of State, Bureau of Pub. Af-
fairs, The Great Seal of the United States 4–6 (July 2003). This Court
has recognized that President Washington’s 1789 Thanksgiving Day
Proclamation referred to “a day of public thanksgiving and prayer” and
the role of a “Supreme Being” in “the foundations and successes of our
young Nation.” Van Orden, 545 U. S., at 686–687. And President Jef-
ferson allowed various religious groups to use the Capitol for weekly wor-
ship services. Hutson 84–94.
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, J., concurring in judgment
constitute an establishment of religion. See Brougher 1–2;
Symbol Cases 91. The simple truth is that no historically
sensitive understanding of the Establishment Clause can
be reconciled with a rule requiring governments to “roa[m]
the land, tearing down monuments with religious symbol-
ism and scrubbing away any reference to the divine.” Amer-
ican Legion, 588 U. S., at ___ (slip op., at 20). Our Consti-
tution was not designed to erase religion from American
life; it was designed to ensure “respect and tolerance.” Id.,
at ___ (slip op., at 31).
*
To justify a policy that discriminated against religion,
Boston sought to drag Lemon once more from its grave. It
was a strategy as risky as it was unsound. Lemon ignored
the original meaning of the Establishment Clause, it disre-
garded mountains of precedent, and it substituted a serious
constitutional inquiry with a guessing game. This Court
long ago interred Lemon, and it is past time for local offi-
cials and lower courts to let it lie.
APPENDIX TO OPINION OF GORSUCH, J.
The Bunker Hill Flag The Camp Constitution Flag
Source: App. to Pet. for Cert. 132a
Source: App. to Pet. for Cert. 146a