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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. Boston 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 Boston’s Property Management Department worried that flying a religious flag at City Hall could violate the Establishment Clause and found no past instance of the city’s having raised such a flag. He therefore 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 government speech, and whether Boston could, consistent with the Free 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 community, 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 regulate private expression. The Court’s 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 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 messages of permanent monuments in a public park constituted government 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 government 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 Trademark Office did not exercise sufficient control over the nature and content 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, supports 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 governmental 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 symbolizes the city and, when flying at halfstaff, conveys a community message 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 Boston neither actively controlled these flag raisings nor shaped the messages 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 record 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 connection 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 information 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 practice was to approve flag raisings without exception—that is, until petitioners’ 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 monuments 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. 98, 112. Boston concedes that it denied petitioners’ request out of Establishment Clause concerns, solely because the proposed flag “promot[ed] a specific religion.” App. to Pet. for Cert. 155a. In light of the Court’s government-speech holding, Boston’s refusal to allow petitioners 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. Kavanaugh, J., filed a concurring opinion. Alito, J., filed an opinion concurring in the judgment, in which Thomas and Gorsuch, JJ., joined. Gorsuch, J., filed an opinion concurring in the judgment, in which Thomas, J., joined.

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, Washington, 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 Confederate Veterans, Inc., 576 U.S. 200, 208 (2015). The line between 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 Christian flag. Boston refused. At that time, Boston admits, 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 government 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, dignity, 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 somewhat 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 gathering spac[e]” for the people. N. DeCosta-Klipa, Why Is 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 seeking 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 Venezuela—marking the national holidays of Bostonians’ many countries of origin. But several flag raisings have been associated with other kinds of groups or causes, such as Pride Week, emergency medical service workers, and a community bank. All told, between 2005 and 2017, Boston approved 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 organization called Camp Constitution, asked to hold a flag-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 organization wished to raise what it described as the “Christian 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 Department 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 Gregory T. Rooney, hereafter Rooney deposition). The commissioner 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 Boston and the commissioner of its Property Management Department (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 groups’ flags from City Hall’s third pole amounted to government 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 Constitution’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 prevent 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 implement 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 easily congratulate the Red Sox on a victory were the city powerless to decline to simultaneously transmit the views of disappointed Yankees fans. The Constitution therefore relies 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, when does government-public engagement transmit the government’s own message? And when does it instead create a forum for the expression of private speakers’ views?

In answering these questions, we conduct a holistic inquiry designed to determine whether the government intends 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 expression. 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 constituted 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 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. In Matal v. Tam, 582 U. S. ___ (2017), on the other hand, we concluded that trademarking 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 sufficient 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, we find that some evidence favors Boston, and other evidence 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 circumstances 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, representing a new constellation.” 8 Journals of the Continental Congress 1774–1789, p. 464 (W. Ford ed. 1907). Today, the American flag continues to symbolize our Nation, a constellation 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 Boston).

Not just the content of a flag, but also its presence and position have long conveyed important messages about government. 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—the land of the free—had survived the British attack on Baltimore 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 someone who has died. 4 U. S. C. §7(m). (Congress has explained, across several sections of the U. S. Code, the meaning 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, signals 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 replacing 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.

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 government’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. Petitioners 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 ceremony 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 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 reflect 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 message 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 commemorate Boston Pride Week. See Brief for Commonwealth of Massachusetts et al. as Amici Curiae 25–26 (citing reports that the then-mayor of Boston gave remarks as the Pride Flag was raised). But it is more difficult to discern 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 reasons. 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 handled applications testified by deposition that he had previously “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 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 internal 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 relevant precedents. In Summum, we emphasized that Pleasant 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 “ ‘flagpoles are not intended to serve as a forum for free expression 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.

All told, while the historical practice of flag flying at government buildings favors Boston, the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, 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 concern proceeded from the premise that raising the flag would express government speech. See Brief in Opposition 23 (explaining 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 precedents, and in view of our government-speech holding here, that refusal discriminated based on religious viewpoint and violated the Free Speech Clause.

* �ă* �ă*

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 Constitution fly their flag based on its religious viewpoint violated the Free Speech Clause of the First Amendment. We reverse the First Circuit’s contrary judgment and remand the case for further proceedings consistent with this opinion.

It is so ordered.

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 followed, 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 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 localities 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 focused 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 government 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 anything) 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 answers 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 Congressional Research Service, C. Brougher, Public Display of the Ten Commandments and Other Religious Symbols 1–2 (2011) (Brougher); M. McConnell, No More (Old) Symbol 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 requiring 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 Chapter, 492 U.S. 573, 593 (1989); id., at 630 (O’Connor, J., concurring 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 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) (Gorsuch, 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 research. 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 proposed display actually amounts to an establishment of religion. Just ask him if he feels it “endorses” religion. If so, game over.

Faced with such a malleable test, risk-averse local officials found themselves in an ironic bind. To avoid Establishment Clause liability, they sometimes felt they had to discriminate against religious speech and suppress religious exercises. But those actions, in turn, only invited liability under other provisions of the First Amendment. The hard truth is, Lemon’s abstract and ahistoric test put “[p]olicymakers . . . 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 opinion).

Our case illustrates the problem. The flags of many nations bear religious symbols. So do the flags of various private 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 presented by a secular group to commemorate the Battle of Bunker Hill. See Appendix, infra (photographs). Yet when the petitioners offered their flag, the city flinched. Perhaps it worried: Would the assigned judge’s imagined “reasonable 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 comparable 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 petitioners’ flag. As it turned out, though, that route only invited 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 Amendment 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 been exposed as an anomaly and a mistake.

From the birth of modern Establishment Clause litigation 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 religion, it readily agreed that “[n]o provision of the Constitution 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 Establishment Clause. Agree or disagree with the conclusions in these cases, there can be little doubt that the Court approached them in large part using history as its guide.[6]

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 results. 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 dissenting in part).[9]

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. Instead, the Court explained that the primary question in Establishment Clause cases is whether the government’s conduct “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 jurisprudence.” Id., at 575–577 (internal quotation marks omitted).

In American Legion v. American Humanist Association we underscored the message. 588 U. S. ___, ___ (2019) (plurality opinion) (slip op., at 25). Again we expressly refused to apply Lemon, this time in a challenge to a public display—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 framework for all future Establishment Clause decisions, its expectation has not been met.”[10] Id., at ___ (slip op., at 13). And again we stressed that the right place to look for guidance 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 inquiry 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, allowing 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., concurring 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 understanding of the Constitution could sustain. Lemon may promote an unserious, results-oriented approach to constitutional 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 suggest 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, prejudice, 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 obscenity, if it is to celebrate only a “particular” type of diversity consistent with popular ideology, the First Amendment is not exactly your friend. Dragging Lemon from its grave 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 suppression 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 relationship with the divine, speak freely about man’s place in creation, and have his religious practices treated with respect. See West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943). The day governments in this country forage 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. Today’s case is just one more in a long line of reminders about the costs associated with governmental efforts to discriminate 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. Rector 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 demanding a careful examination of the Constitution’s original 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 without at least a partial remedy. For our constitutional history contains some helpful hallmarks that localities and lower courts can rely on.

Beyond a formal declaration that a religious denomination 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 mandated attendance in the established church and punished people for failing to participate. Third, the government punished dissenting churches and individuals for their religious 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 efforts to give churches monopolistic control over civil functions. 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 other entities. See Espinoza v. Montana Dept. of Revenue, 591 U. S. ___, ___–___ (2020) (slip op., at 18–22); Trinity Lutheran 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 hallmarks 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 establishment.” Symbol Cases 107. For most of its existence, this country had an “unbroken history of official acknowledgment by all three branches of government of the role of religion 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 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 symbolism and scrubbing away any reference to the divine.” American Legion, 588 U. S., at ___ (slip op., at 20). Our Constitution 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 disregarded 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 officials and lower courts to let it lie.