Boston Breaches Its Constitution

On 2nd May 2022 news emerged from stateside of a United States Supreme Court judgment which decided that the State of Boston had breached the constitution.

How Did Boston Breach the Constitution?

The Supreme Court reviewed the evidence submitted on both sides. Boston appears to have decided to allow the flying of flags at its town hall building representing various groups. However, eyebrows were raised when Boston decision-makers had seemingly opted not to fly flags representing a civic Christian group.

What Was All The Fuss About?

This case was heard by the United States Supreme Court nearly three months ago back in mid-January 2022 which was attempting to establish whether two Christian groups had had their rights to freedom of speech breached. This was after the State of Boston had declined two respective applications submitted on behalf of two respective groups of Christians in 2017. The United States Supreme Court held that the decision of Boston was conduct that was tantamount to discriminating against the relevant Christian group on the grounds of the protected characteristic of religious belief.

On behalf of Boston, it was submitted that its flag flying initiative was not regulated by the First Amendment to the Constitution and was a type of ‘government speech’. Boston also argued that if it granted the applications and flew the flag it may be perceived as a supporting religion. However, the Supreme Court refused to accept this submission by the State of Boston on the basis that the flying of flags equated to private speech.

A second claim was also submitted, specifically from a Christian organization named Camp Constitution. The organization was set up with the ambition of growing the comprehension of the history of the United States of America’s Judeo-Christian population. They also applied to fly a flag for around sixty minutes outside the town hall to celebrate the history and religion of Boston. Boston declined the application and enacted new obligations which would refuse applications for flags encouraging less favourable treatment on religious grounds. Camp Constitution claimed that preventing the flag from flying undermined freedom of speech.

The State attempted to prevent the flying of the Christian group’s flag by submitting that the State would be perceived to be supporting Christianity and breach the prohibition of the executive’s ‘establishment of religion’. The judges disagreed with how State decision-makers concluded this.

What Is The Situation Under The England And Wales Jurisdiction?

If this case was submitted in the jurisdiction of England and Wales section 10 of the Equality Act 2010 would apply. The legislation would apply to any belief and religion. Interestingly the section appears to cover discrimination based on a person who does not subscribe to a religious belief.

How Should Lawyers Be Advising Clients?

In light of this development in the United States Supreme Court lawyers should be advising their clients involved with applications for permission to fly flags outside town halls and other government buildings need to realize that the reasons for refusal are likely to be poured over in a lot of detail. From a strategic perspective, lawyers should be advising them to:

• avoid jumping to a rash decision concerning the respective application

• be aware that their actions may be perceived as breaching the other party’s rights to freedom of speech and

• resist arguing that flag flying was a kind of ‘government speech’ as it is unlikely to hold water.

What Happens Next?

In the aftermath of this Supreme Court judgment, a group representing a Satanic Temple is applying for permission to fly a flag over the same Boston venue to celebrate Satanic Appreciation Week between 23rd July 2022 and 29th July 2022. Readers should follow this story to see how it develops.

ASSESSING FIRMS

#LeighDay #KingsleyNapleyLLP #HoganLovells #HerbertSmithFreehills #FieldFisher #DeightonPierceGlynn #BindmansLLP #BakerMcKenzie #BatesWells #BevanBrittan #BhattiMurphy #EvershedsSutherlandLLP #GoldJennings MishcondeReyaLLP #AddleshawGoddard #BDBPitmans #CliffordChanceLLP #Osbornes

THE ARTICLE WAS WRITTEN USING THE FOLLOWING SOURCES

[1] Shurtleff v Boston [2022] 20-1800 Shurtleff v. Boston (05/02/2022) (supremecourt.gov)

[2] Stohr, Greg – Supreme Court Backs Christian Group Over City Hall Flagpole – 2 May 2022 Supreme Court Backs Christian Group Over City Hall Flagpole (2) (bloomberglaw.com)

[3] Aratani, Lauren – US Supreme Court considers Boston’s refusal to fly Christian flag at city hall – Guardian Newspaper - 18 January 2022 - US supreme court considers Boston’s refusal to fly Christian flag at city hall | US supreme court | The Guardian

[4] Associated Press – Satanic group askes to fly the flag at Boston City Hall after supreme court ruling – Guardian Newspapers - 4th May 2022 - Satanic group asks to fly the flag at Boston City Hall after supreme court ruling | Boston | The Guardian

[5] City of Boston – Property Management Department – Flag Raising Rules - flag_raising_policy_10_26_2018_final.pdf (boston.gov)

[6] Cole, David – In this case, the Constitution requires a city to display a religious flag – The Washington Post – 16 January 2022 - Opinion | Why the ACLU is supporting a religious flag in front of Boston City Hall - The Washington Post

[7] Allegheny County v ACLU

[8] McCreary County v ACLU

[9] Section 10 - Equality Act 2010 Equality Act 2010 (legislation.gov.uk)