At the Supreme Court: Boston v. the Mayflower Compact

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Religious freedom advocates hope for a banner day at the Supreme Court when the Nine hear the case of a Christian group that was barred from flying its symbol on a public flagpole, even as other groups were allowed to fly their standards. The Roberts court, which has proven receptive to religious free exercise in public, here has another opportunity to vouchsafe this First Amendment question.

The suit was filed by a New Hampshire group called Camp Constitution, which seeks to “enhance understanding of our Judeo-Christian moral heritage,” as well as “the genius” of our Constitution. The group sought to fly its banner, which features a cross in its upper left corner, on a municipal flagpole in Boston’s City Hall Plaza. The city denied the request “solely because it was called ‘Christian’ on the application,” Camp Constitution says.


The group says Boston has set aside the municipal flag poles for “all applicants” as a public forum, encouraging organizations to use the poles “to foster diversity and build and strengthen connections among Boston’s many communities.” Camp Constitution says before its own application, 284 groups applied to fly their flags and none were rejected. Boston denies Camp Constitution’s claim that the flagpoles are a public forum, calling it a “surprising assertion.”

Boston claims it has not “intentionally converted one of the three towering flagpoles” in City Hall Plaza into a public forum. The flagpole is instead “a means by which the City communicates its own message,” Boston cavils. It “has not simply been turned over to private parties as a forum to pronounce their own messages.” The flagpoles are “used overwhelmingly to project the presence in the City of the three levels of government.”

Sure, Boston concedes, “the City occasionally raises in place of its own flag another banner honoring some day of observance,” like Veterans Day, or “a moment of civic pride,” like the “all female football team that recently won the National Title.” Boston “invited communities of different ethnicities or national origins” to propose additional flags that celebrate “diversity.” The flagpole, Boston says, is a “bully pulpit” used for “civic promotion that is central to the governmental function.”


Camp Constitution’s argument “relies on distorted readings of the City’s written documents,” Boston contends, “and equally distorted views of the City’s historical flagraising practices.” Boston “did not convert that flagpole into a public forum.” Yet Boston flies the United Nations flag marking a day of “reflection” on the Genocide in Rwanda, the Pan-African flag “on the birthdate of Marcus Garvey,” and, il va sans dire, “the ‘Pride flag,’ to celebrate ‘gay pride.’”

Mathew Staver of Liberty Counsel, representing Camp Constitution, argues Boston “cannot single out a religious viewpoint for disfavored treatment” at “a public forum that is open to non-religious viewpoints.” The case echoes Trinity Lutheran Church v. Comer, in which the Supreme Court, in a seven to two decision, blocked Missouri from denying aid for safer playgrounds to a school because it was Christian.

The Supreme Court is also weighing this term Maine’s policy of denying taxpayer aid to private schools that would use the funds for religious instruction. Meanwhile in the flagpole case, Boston’s “censoring of religious viewpoints” isn’t merely unconstitutional, Mr. Staver reckons, “but also violates the historical and deeply held values of Boston.”


Indeed, one wonders how this hostility toward religion would sit with the Bay State’s founders. They undertook the whole enterprise, as the Mayflower Compact reports, “for the Glory of God and advancement of the Christian Faith” as much as for the honor “of our King and Country.” The 1780 Massachusetts Constitution ordained that the public good relied on “the institution of the public worship of God” along with “public instructions in piety, religion, and morality.”

So where does an official of Boston come off telling Camp Constitution that the city today “maintains a policy and practice of respectfully refraining from flying non-secular flags on the City Hall flagpoles”? The policy, the official said, is “consistent with well-established First Amendment jurisprudence prohibiting a local government from ‘respecting an establishment of religion.’” That cramped comprehension of our parchment deserves the closest scrutiny when Camp Constitution comes before the high bench tomorrow.


Image: Detail of a painting — by Jean Leon Gerome Ferris —of the signing of the Mayflower Compact. Via Wikipedia.

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