We have yet another case were the first amendment’s free speech clause to talk about your stupid religion is at odds with the first amendments freedom of religion clause, which is often interpreted as “Separation of church and state,” despite the fact that it doesn’t actually say that.
In the city of Boston, that’s Bahstin to the locals, their city hall has three flagpoles. The first pole has Old Glory with a POW/MIA flag underneath it. The second pole has a Massachusetts flag on it. Nobody gives a fuck about those two. It’s the third one we need to have a “come to Jesus” about.
While it typically flies the Boston flag, they’re totally OK if you want to fly some other flag on it, like for some local charity, movement, or some other shit. Just submit your stupid fucking petition, and they’ll generally green light that shit and put it up for you.
As is typical in life, good times are often ruined by some cross-waving bible-thumping Jesus freak—in this case, Harold Fucking Shurtleff.
Bahstin had flown a Juneteenth flag, an LGBTQ flag, and even the flag of other countries, including flags from asshole countries like China and Cuba. But along comes Harold Fucking Shurtleff, with a Jesus fish buried in his asshole, and his message that America has lost its way and needs to get right with god. So in 2017, he submits an application to fly his stupid Latin cross flag, because he wanted to hold some Jesus rally that day in the plaza in front of city hall.
Harold Fucking Shurtleff represents a group called Camp Constitution. Don’t even get me fucking started on how a group who says their goal is to defend the constitution seems blissfully ignorant that our forefathers didn’t want religion to be a part of government.
Anyway, back to the case. Greg Rooney, Commissioner of Boston’s Property Management Department, is the dude you talk to, when you want to raise your “I’m going to change the world with my stupid message” flag at Bahstin City Hall.
Over the course of about 12 years, Greg was looser than a twenty-dollar whore. Out of 284 applications, he’s rejected precisely zero of them…until now.
In comes Harold Fucking Shurtleff with his, “I’m going to tell you I care about the Constitution with my group’s name, but what I really want is you heathens to all burn in hell” flag, hoping to fly that shit for a day. I mean, why the fuck not, if we’re going to fly Cuba’s or China’s flag there?
Well, Greg Rooney has heard this phrase, “Separation of church and state,” assumed it was the law, and was like, “sorry dude, we can’t fly that shit here.”
Harold Fucking Shurtleff, apparently having watched way too much Bill O’Reilly, felt that our country was a Judeo Christin country, and we needed to remember that. Despite the fact many of the founding fathers were actually deists, and just believed in a generic god that created the world, and then fucked right the hell off, leaving mankind to do whatever the fuck they wanted.
So Harold Fucking Shurtleff, accuses Greg Rooney of being the devil, and sued him, so he could fly his stupid fucking flag. It’s the American way.
This case is similar to other religious cases we’ve talked about recently, where the “Separation of church and state” interpretation of the first amendment is put under the microscope against the First Amendment’s actual text, and its free speech clause.
The argument is that the First Amendment says, “Government shall make no law…” not “Separation of church and state.” Flying a flag isn’t making a law. So it doesn’t violate the First Amendment’s establishment clause. (The establishment clause is the part about government not establishing religion. That’s just what it’s normally called for brevity’s sake.)
The second argument is that by singling these Jesus freaks out, you’re denying their right to free speech, by using this errant interpretation of the establishment clause.
The argument from god’s soldiers is that denying Harold Fucking Shurtleff and his merry band of Jesus freaks the right to fly their flag, when they apparently let every other asshole fly their stupid flag, denies Harold Fucking Shurtleff his first amendment right to free speech be singling him out specifically because his flag was based on religion.
I’ll say it once, and I’ll say it again, if the government (in this case Bahstin) wants to win these cases, instead of just going after some Christian cause, they need to get a fucking Muslim to apply to fly a flag of Allah on the cross, or some shit. Deny them the right to fly that. And then get the Muslim to join the Jesus freaks in their suit. Once the justices are faced with the idea of a Muslim flag flying, we won’t have to worry about having Jesus shoved up our ass, anymore. No way would they side with a Muslim wanting to fly a flag with “Death to Infidels” on it, or some shit.
As per usual, the reason SCOTUS is hearing this, is because when Harold Fucking Shurtleff sued, a district court told him to get fucked. So he went to the First Circuit US Court of Appeals, and they also invited him to go fuck himself.
As is always the case, these Jesus freaks are fucking persistent, and for whatever reason, SCOTUS just loves these First Amendment arguments, lately. So here we are.
As arguments got underway, counsel for Harold Fucking Shurtleff, Mathew Staver, a man who is efficient with his use of the letter T in his name, was pelted with questions as to whether there is a limit to what kind of flag can be flown there. They asked if an Al Qaeda flag could be flown (no, really they did) for instance.
But Staver, committed to the argument, was like, “they never had any fucking rules. They literally allowed every fucking flag imaginable until my fucking client came along. Apparently his review process was, ‘Is it a flag? Great. It’s approved.'”
After Justice Roberts grilled him on limits, Justice Kagan REALLY went for the extreme hypothetical:
Mathew D. Staver
Mr. Staver, just to follow up on the Chief Justice’s question, and this is not this case, but it’s an important question because we have to set lines and we’re giving instruction to cities about how they can create their own policies. And suppose a city thinks two things. It thinks we like this idea of having our flagpole be a public forum and having a wide variety of organizations use it to identify themselves and to express messages, so we sort of like this sort of civic organization kind of activity.
But, at the same time, we think that there are limits. So the city has a policy of that kind, and then somebody comes to it and says, we’d like to put up this swastika on your pole.
Does the city really have to say yes at that point?
If it’s a designated public forum, I think the answer is yes.
So, really, what you’re saying is that a city can’t possibly have a kind of open policy like this because no city is going to want to put up a swastika or a KKK flag or something like that.
So, really, what you’re saying is that this is just a kind of policy that a city can’t have?
Mathew D. Staver
No, Justice Kagan.
In fact, the City could have a more limited policy.
It didn’t choose to do that. Now the City’s brief tries to indicate certain limitations on categories of subject matters.
But that’s nowhere to be found in the 12-year or 13-year policy, and it’s not in the 2018 codification of that policy anyway. That is not limited to subject matters or speaker identity.
If the City wants to open up a forum but limit it to certain kinds of subject matters or speakers, certainly, the City is capable of doing so.
So Staver’s argument is that if the city had put some boundaries on this shit early on, and wrote that shit into some sort of code for what flags they will and won’t raise, then that’d be all Cool & The Gang. But instead, those lazy fucks couldn’t be bothered, and just we’re like, “Meh, approved.” 284 times, until our client, Harold Fucking Shurtleff rolled up with his Jesus flag, and all of a sudden, they’ve got a fucking problem.
He was like, “These mother fuckers just hate Jesus. That’s what this is really all about.”
Justice Kagan, ever the skeptic, wasn’t done with counsel Staver, though. She went on to ask:
I guess, though, that one of the points that Justice Breyer was making is, if you’re on the street in Boston and looking over to City Hall and see these three flagpoles, and now you say there’s maybe a fourth, but the three are sort of together, you know, why would you think that this is anything other than government flying a flag?
Mathew D. Staver
I think, when you look at that, Justice Kagan, you’re going to see, one, that’s clearly government speech, as Justice Barrett was referring to in terms of limiting. You have the United States flag always up, and underneath it is always the POW/MIA flag.
It’s always there.
That’s clearly the government’s speech.
And then there’s the Commonwealth flag.
And then there’s this third flagpole.
And you’ve walked the street many times and mostly you’ve seen the City of Boston’s flag on it, but occasionally you see another flag on it.
Why wouldn’t you think that this is the City of Boston deciding to put up a substitute flag for its own purposes?
Mathew D. Staver
Because an informed observer would understand the history, the policy.
Well, that is very, very informed.
I mean, that is not your typical person who walks the street in Boston. And, you know, all they know is, I’ve seen the City of Boston flag here a thousand times, and now I see another flag.
It must be the City of Boston decided to do something else today.
In rebuttal, Staver’s argument was like, “Listen, generally these fucking flags flown are in conjunction with some even in the plaza, or a particularly special day, to which people would know, the flag is flying in relation to that thing. Many of which aren’t governmental things. So anyone with half a fucking brain would know this wasn’t government sending a message, but instead, government allowing the people to promote whatever bullshit they want to promote that day.”
Seems like a stretch to me. Honestly, I’m surprised that the city can’t just be like, “Hey, if someone wanted to put a flag up of someone’s asshole, we’d have rejected that, too. It’s just that most people fucking know what’s appropriate in a setting like this, and Harold Fucking Shurtleff is just the first idiot to decide to push the envelope.”
In response to the petitioner’s the city’s counsel Douglas Halward-Driemeier opened with this:
Mr. Chief Justice, and may it please the Court: The sole issue here is whether the City’s decision to lower Boston’s flag from the City Hall flagpole and raise another in its place is the City’s own speech.
If so, then, as Summum held, the City is free to select the views it wants to express. If, however, the flag-raisings were private speech and the flagpole had become a public forum, then the City agrees that it cannot exclude Petitioners’ flag. Thus, whether the flag-raisings were government or private speech is dispositive. The facts here are at least as supportive of the City as in Summum.
And Petitioners’ counter-arguments rest upon a caricature of the actual events. First, Summum held that exercising final approval authority constituted effective control.
Petitioners stipulated at Pet. App. 149a that before “final approval,” any flag-raising, Commissioner Rooney “must review whether the City’s decision to raise a flag is consistent with the City’s message.” As in Summum, there is no record of prior denials but also no record of flag-raisings inconsistent with the City’s message.
And, unlike Walker, there are no purely private messages. Second, Summum looked to the general practice of governments erecting monuments. And, similarly here, governments speak from government-owned flagpoles.
That is what the observer would expect.
Whereas Pleasant Grove made no express statement of its message, here, the City has.
It has a specific policy with respect to foreign flag-raisings, and it has issued resolutions in connection with others. Third, as in Summum, the — it would defeat the flagpole’s essential function as the City’s bully pulpit to treat it as a public forum.
The City cannot effectively use its flagpole to communicate its own message if it must remain neutral and also carry the opposite message. Private parties are free to wave their flags on City Hall Plaza or even raise a temporary flagpole there, but they cannot commandeer the City’s flagpole to send a message the City does not endorse. I welcome the Court’s questions.
And I’m happy to address some of the questions
Counsel Driemeier for Bahstin went on to establish that there was an established policy, and it was also on their website. Alluding to my earlier point, that their argument should just be, that the reason they approved everything else prior to this, was because up until this asshole showed up, no one tried to put anything up there that violated our policies:
So, Your Honor, to be clear, the City policy, which appears at Joint Appendix 569, states that the City, through its Commissioner, may allow raising of flags to commemorate an event or occasion.
And that’s one bucket that we’ve described, these holidays or other similar events or occasions. Also, on the City’s website, there is a statement of the goals of the flag-raising program, and it says, we commemorate, we, the City, commemorate flags of many countries.
We want to create an environment in which everyone feels included.
We also want to raise awareness in Boston and beyond about the many countries and cultures of the world.
Our goal is to foster diversity by celebrating the communities within Boston. So the foreign nation flag-raising is described in the goals.
It’s on the City’s website.
The policy states we do this in commemoration of events or occasions.
And so the categories we’ve given are explicit there. And, moreover, the rules are actually a subcategory.
The policy incorporates the rules.
And then, under the rule/policy, the first rule is that we, the City, will not put up a flag that is discriminatory, offensive, or that supports religion. The City is going to stay silent, neutral, with respect to religion. We’re not going to support a religion.
Neither will we offer something that is derogatory of religion.
And that’s consistent with the principles of the Establishment Clause.
Justice Alito took counsel Driemeier to task, and posited a hypothetical that what if someone wanted to give a speech in front of city hall, and that speech was a religious speech?
But counsel rebutted that the difference is, that instance would be a person giving a speech in a place where they’re typically allowed to protest government and such, and therefore that’s OK. Because like all rights, it simply requires that government to do nothing.
In this case, the government has a flagpole, and it literally raises and lowers it’s flag, and puts up whatever stupid fucking flag they agree to put up for you. So this requires government to do something—lower their flag and raise yours. That’s what makes it different.
Justice Kavanaugh, apparently growing tired of these cases about the Establishment Clause, basically was like, “Listen fuckhead, haven’t we answered this shit in multiple other cases? Letting religious people be heard on government property, isn’t a violation of the fucking establishment clause. There are so many more interesting things I could be doing with my life right now, than answering this question again and again and again.”
I’m paraphrasing, but you can read the transcript and see I’m not that far off.
Counsel went on to point out that had Harold Fucking Shurtleff just brought some flag for his Camp Constitution group, that didn’t have a fucking cross on it, or at least, if he hadn’t written into his petition that he was specifically asking for a day to get with god, we’d have totally let him raise that shit. It’s just his religious message we don’t want on our fucking lawn.
In a rather surprising unanimous decision (not surprised with the decision, but that it was unanimous), SCOTUS sided with Harold Fucking Shurtleff. They argue that this third-flag program isn’t the government endorsing anything, it’s just a friendly thing they do for Bahstonians, and so denying Harold Fucking Shurtleff his right to fly his stupid fucking flag, is a violation of his first amendment rights to free speech.
Part of the problem for Bahstin, the court reasoned, was that up until new, Greg Rooney had a 284 to zero record, in allowing flags. So the fact that he decided to reject this one, was clearly aimed at denying Harold Fucking Shurtleff’s right to free speech, based on religion. If they had a history of rejecting others that were controversial for whatever reason, they might have won this shit.
SCOTUS also reasoned that this was not historically considered the opinion of the city, when flying these flags. It was always well understood it was just random Bahstonians and their stupid causes. So if the city isn’t pushing the agenda of the flag, then it’s not a 1A violation.
Justice Gorsuch, in his concurring but separate opinion whent on to criticize “The Lemon Test.”
The Lemon Test is an old 1971 SCOTUS precedent, related to a case, Lemon v. Kurtzman. Also a religious speech case.
You’ll often here the term “test” in court cases. All that means is, when considering how to decide, the court asks a question, which becomes a dividing line for how they would choose. So for instance, a test might be, “was the speed at which you were driving above the speed limit?” If so, you’re guilty, if not, you’re AOK. That question is the “test.”
So the Lemon Test, was created in the decision of that 1971 case, and it goes like this:
Laws (1)must have a secular legislative purpose;(2) must have aprincipal or primary effect . . . that neither advances nor inhibits religion . . .;(3) andmust not foster ‘an excessive government entanglement with religion.
So the idea was, that when considering religious first amendment cases, SCOTUS or any other court, going forward, should apply that test.
Well, here we are, 52 years later, and Justice Neil Gorsuch is like, those old bastards were idiots, and that’s a stupid fucking test. We shouldn’t bother with that shit anymore. While Justice Thomas joined him in this separate opinion, they were in the minority in overturning Lemon. They just all agreed in this case, Harold Fucking Shurtleff wins.
As a result of all this nonsense, Bahstin has enacted a new policy, in which Harold Fucking Shurtleff still loses, but now he has a law written especially for assholes like him, to cite as to why he loses. Seems like a lot of work to lose anyway. But in the interim, he did get to raise his dumb fucking flag once, anyway.
Hear oral arguments and read about the case here at Oyez and here at SCOTUSBlog.