Even in Divisive Times, The Flag of Religious Freedom Still Flies

May 4, 2022

Amid the furor that was unleashed on the Supreme Court after a leak of a draft decision overturning Roe v. Wade, an actual decision affirming religious liberty was handed down the same day but received scant attention. In a rare unanimous ruling, the Supreme Court ruled that the city of Boston's refusal to allow a Christian flag to be flown in front of City Hall violated the First Amendment rights of a Christian group known as Camp Constitution who submitted an application for the flag to be flown.

"[Y]ou never get a case when it's like this where it's 9-0," said Mat Staver on "Washington Watch." "They're very, very rare, especially on a religious free speech case or any kind of religious liberty case." Staver, who argued the case on behalf of the Boston resident and his Christian civic organization, is the Founder and Chairman of Liberty Counsel.

What undoubtedly contributed to the unanimous ruling was how clearly the city of Boston engaged in viewpoint discrimination against the Christian group. All of the previous 284 applications had been approved, except one.

"For 12 years, they had no denials, no review of the content until we came to this one, and they said no," Staver pointed out. "And the only reason they did is because of the one word, the word 'Christian' in the application. So it was very blatant."

What makes this case even more remarkable was the fact that the majority opinion was authored by none other than liberal Justice Stephen Breyer. Furthermore, the normally anti-religious freedom Biden administration argued on behalf of the Christian group.

"[I]t's amazing ... the Assistant Solicitor General argued in our case here," Staver noted. "They argued here because they knew that the case could go sideways if they didn't get involved because they deal with parks as well. And they have different kinds of celebrations where you have events that are open to the public ... like, for example, the lighting of the Christmas tree that is a government sponsored event. ... So they have both public and private [events], and they wanted to make sure that that intersection between government speech and private speech is maintained, something that the lower courts got terribly wrong."

During an era in American history that has experienced unprecedented attacks on the freedom to live out one's religious beliefs in the public square, this Supreme Court ruling is a welcome sign that there are still some aspects of our First Amendment rights that all sides can agree upon, and it sets an encouraging precedent for the future.

"It sets a big precedent because it's ... not just about the Christian flag," Staver said. "The flag itself was not the problem. Boston officials said you could fly that flag. Just don't call it 'Christian' in the application ... So it really is much broader than flying the flag in Boston or on any flagpole. It's about excluding Christian viewpoints from a public forum, whether it's in Boston or someplace else, whether it's after school for a Bible club, whether it's use of a common community room or a band shell of a public park."

Still, it was noteworthy that not all aspects of the case were agreed upon by all the justices. "It sounds like the opinion may have been stronger if one of the conservatives had written it because Clarence Thomas and Samuel Alito didn't agree with part of the reasoning of the majority, but they agreed with the outcome," FRC President Tony Perkins noted.

While the victory may not have been as clear-cut a win for unadulterated religious freedom as one might hope, it was still a win, and one that reached across ideological lines within the Supreme Court at that. In our current era of unprecedented political and cultural division and acrimony, in which the rule of law and basic truths about the nature of humanity are being challenged, it was a welcome respite. Let us pray for more of these victories for law, order, and truth in the future.