NC Family Staff | May 20, 2022 | SHARE: 
On the same day that a draft opinion in the U.S. Supreme Court Dobbs v. Jackson Women’s Health was leaked, the High Court issued its ruling in a crucial religious liberty case: Shurtleff v. City of Boston. In a unanimous 9-0 ruling in favor of religious liberty, the Supreme Court definitively stated that government cannot censor religious symbols or speech when it allows identical secular symbols or speech.
Mat Staver, founder and president of Liberty Counsel, argued the case before the Supreme Court, and he joins us on this week’s episode of Family Policy Matters to unpack the details of the case and the Court’s unanimous ruling.
The City of Boston has for years allowed people to apply to temporarily fly certain flags from specific flag poles in its downtown public plaza. For twelve years, the city has considered the public plaza and flag poles to be public forums, and has not censored a single flag, including the LGBTQ pride flag and a pro-communist China flag. But in 2017, Boston refused an application by Hal Shurtleff to fly the Christian flag during an event he was holding at the public plaza.
“The flag itself was not the problem,” explains Staver. “One word on the application caught the attention of a Boston city official who was approving or reviewing these applications, and that is the word ‘Christian’ […] [the city official] denied it solely because of the word Christian.”
“They didn’t hide the fact that indeed they were censoring the Christian viewpoint,” continues Staver. “It wasn’t a policy that they wanted to open to all applicants; they only wanted to open it to people that they agreed with.”
Thankfully, all 9 of the Supreme Court Justices ruled in favor of Hal Shurtleff and religious liberty, stating that Boston’s actions violated the free speech clause of the Constitution. Staver emphasizes the importance of this case for all people of faith across the country, regardless of whether your community has a flag program like Boston’s. “This is a very significant case, far beyond a Christian flag,” he says. “There’s after school programs; there’s renting of facilities […] There are libraries and community rooms. There are all these public fora all over the country, and what this case stands for is that you cannot censor religious viewpoints from these public forums or marketplace of idea locations.”
Tune in to Family Policy Matters this week to hear Mat Staver unpack this unanimous U.S. Supreme Court ruling in favor of religious liberty, and what it means for the future.
TRACI DEVETTE GRIGGS: Thanks for joining us this week for Family Policy Matters. While the U.S. Supreme Court has been front and center in the news in recent weeks, many of us may have missed an important unanimous ruling the high court issued on May 2. That case has important religious liberty implications.
Well, we’re joined today by attorney Mat Staver, who successfully argued this case at the U.S. Supreme Court. He is founder and chairman of Liberty Council, a Christian ministry working to advance religious liberty, the sanctity of human life, and the family through several outlets, including strategic legislation.
Mat Staver, welcome to Family Policy Matters.
MAT STAVER: Thank you. It’s good to be with you.
TRACI DEVETTE GRIGGS: Well, first of all, tell us a little bit more about what your organization’s goals are, and what are some of the outlets—that we just mentioned—that you all work through to achieve those goals?
MAT STAVER: Well, our organization’s mission has always been the same since 1989, and that is to advance religious freedom, the sanctity of human life, and then later in the ‘90s, we added the third prong, which is the family—threats to God’s natural design for family and husbands and wives, male and female. We do that through litigation in the courts all over the country, as well as public policy, giving information and guidance to legislators so that we can have good laws that actually align with good society and are in consistent alignment with our values.
TRACI DEVETTE GRIGGS: Let’s talk about this case that I mentioned in the opening. It’s Shurtleff v. the City of Boston. So, what were the circumstances that led to this lawsuit against the City of Boston?
MAT STAVER: Well, this began back in 2017 when Hal Shurtleff, the founder of Camp Constitution, wanted to have an event in the City of Boston on the public plaza and by the flag polls, both of which were considered for 12 years by the City of Boston as public forums—that’s their term—open to all applicants. Again, that’s their term in their policy. As well as have an event for one hour talking about the Judeo-Christian history of Boston, the Commonwealth of Massachusetts, and the founders—including John Adams, John Quincy Adams, and others—he wanted to temporarily raise the Christian flag on one of the flag poles that they designated as a public forum open to all applicants. For 12 years, the City of Boston did not censor a single flag of private, flag-raising applications. They had 284; no denials, virtually no review.
But then Hal Shurtleff’s application came across the desk, and they censored it. They censored it not because the flag itself; the flag itself was not the problem. One word on the application caught the attention of a Boston city official who was approving or reviewing these applications, and that is the word “Christian,” associated with the word “flag.” He denied it solely because of the word Christian. He said to Hal Shurtleff, “If you called it anything but Christian—call it the Camp Constitution flag, call it anything, just don’t call it Christian—we would grant your approval. But, if you call it Christian, we’re going to deny it.”
And so that’s how it actually began. So, it’s very clear; they didn’t hide the fact that indeed they were censoring the Christian viewpoint. They tried to defend themselves, but they clearly admitted that it was the Christian viewpoint that was not welcomed. So, really, it wasn’t a policy that they wanted to open to all applicants; they only wanted to open it to people that they agreed with, but that was the constitutional violation that this 9-0 Supreme Court decision ultimately shot down.
TRACI DEVETTE GRIGGS: So, this always amazes me. It’s like, how can these people get into these positions and not understand what some of the legal precedents are that have already been in place? Can you talk a little bit about those? I mean, he should have known better, right?
MAT STAVER: We thought it was going to be an easy issue. When Hal Shurtleff have got the denial, we said, “Surely there must be a mistake. Let’s send a demand letter. We’ll clear it all up.” No. They dug their heels in. They said, “No, this is Christian speech viewpoints. We’re going to censor it. And we can. And we must, because of the so-called establishment clause.” They said, “No, it’s really government speech,” which makes no sense because for 12 years, they included private displays of pro-communist China, Mao Zedong. And about a week later, anti-communist China, anti-Mao Zedong, and those were by private citizens. Well, was the city speaking out of both sides of its mouth? One week it’s pro China, pro-communism, pro-Mao. The next week, it’s anti-China anti-communism, anti-Mao? So, it was clearly private individual speech on a public form, but they said, “No, they’re going to censor it.”
We filed a lawsuit. We thought, surely this would be easy to resolve. No. What happened is you realize how far off the constitutional platform these judges have gone. In fact, in this case, we lost in the lower court. When we appealed to the Court of Appeals, we thought, surely we’ll win here. And we lost 3-0. We went back down for additional discovery, found more applications that they had granted—not a single denial, 284 over 12 years with no denials except for Hal’s because of its Christian viewpoint. We thought, surely this would win the case. Nope. We lost again, went back to the same Court of Appeals panel, 3-0 loss another time.
So, it was stunning how off base these judges were. We asked the Supreme Court for review. They saw the significance of the case, of course, and now we’ve got a 9-0 decision, which really is great in the sense that there’s no shadow under which these judges or some of the naysayers can hide and say, “Well, I agree with this dissenter!” There are no dissents. It was a slam dunk, huge win. In fact, the Boston Herald, the day after this decision, on the very front page, took up the entire front page regarding this case. And in bold letters, they said “Supreme Spanking.” And they talked about this case with the Christian flag.
TRACI DEVETTE GRIGGS: So these lower courts, what were their arguments for denying this? What did they say?
MAT STAVER: Well, I think they got caught up with the idea that you don’t typically fly a Christian flag on a public flagpole, that there’s just no way you could actually do that. That would be an establishment of religion. And we said, “Well, look at the policy; look at the practice, 12 years.” We also have a policy that says it’s a public forum that it’s open to all applicants. You can’t exclude religious viewpoints from a public forum. They were so much against religious speech, so much anti-Christian animus, I think, coming from these judges, that they ended up reaching a result that they wanted to without even addressing the core issues. So, they said, “No, we’re going to assume that this is Boston speaking. And Boston can say whatever they want to, so they can exclude you, although they don’t exclude anyone else.” We thought that would win the day. That’s pretty obvious, but no, we lost. And obviously that’s what caught the attention of the U.S. Supreme Court and why we got a 9-0 decision.
TRACI DEVETTE GRIGGS: Alright. So, talk a little bit about how that decision came about. What were some of the comments made?
MAT STAVER: During the argument, the interesting comment was first by Justice Breyer. He asked me, as I was arguing—and this question was followed up by Justice Kagan to the city attorney after my argument—and that is, “Why did the case not settle?” I said, “Well, you know, we thought it was going to be an easy situation, but the city dug its heels in and would not budge.” You don’t want, if you’re defending and you’re at the Supreme Court, the last person you want to ask you this question is Justice Breyer and Justice Kagan. “Why didn’t you settle the case?” In fact, Justice Kagan said to the city attorney, “After you made a mistake, why didn’t you settle and move on? It looks like you have flags go up, flags go down. The only flag you didn’t allow that was this Christian flag. That looks like a violation of the free speech clause.”
Those were the kinds of comments that came out during the argument. The good thing is that when the decision was actually written, it’s not only 9-0, but Justice Kavanaugh has a great concurrence. He says specifically that religious persons, religious organizations, religious symbols—you cannot censor them under the constitution when you allow these other secular symbols, speech, and organizations to have their own viewpoint. And Justice Gorsuch said, with regards to the so-called “lemon test,” he said, “How did the city get this so wrong?” Well, they relied upon this outdated, terrible lemon test, going back to 1971. He says that came about during an era where the justices were more freewheeling and not consistent with the original intent and understanding of the constitution. Those days are long gone. He called it a bygone era, and he noted that none of the nine justices raised the lemon defense. He noted how this is now a new era.
And in fact, the lemon test has been the favorite weapon of people who want to censor religion and religious viewpoints or religious symbols, like nativity scenes. They’ve raised that to ultimately intimidate government officials and use that as a defense to censor. The good news is over the years, we’ve chipped away at that. We’ve moved forward with this religious free speech and viewpoint litigation, and this is a culmination of many years of litigation and strategy that started back in the 1990s.
So, this is a very significant case, far beyond a Christian flag, because somebody might say, “Well, I don’t fly a Christian flag,” or “There’s nothing like that in my county or my city.” Right. But, the fact is there’s after school programs; there’s renting of facilities, for example; churches in schools on Sunday. There are public band shows that are in the public parks that you might want to use for an event. There are libraries and community rooms. There’s all these public fora all over the country, and what this case stands for is that you cannot censor religious viewpoints from these public forum or marketplace of idea locations.
TRACI DEVETTE GRIGGS: So how common is a unanimous ruling?
MAT STAVER: It’s very rare. It’s very rare to get a unanimous ruling by the justices on any issue—certainly a non-controversial issue, but even more so a controversial issue, one that typically would perhaps split votes and religion always splits votes, whether it’s a religious symbol or religious speech. But in this particular case, to get a 9-0 decision on this issue is an incredible situation and I think it really silences the critics. In fact, the one nice thing about it is if there was even one dissenter that raised the sky as falling kind of an argument, it would’ve been that which had gotten most of the print in the newspaper. They would’ve quoted that person. There’s not a single justice that’s a naysayer on this case, and so all of the dissenters that otherwise would not agree with religious free speech, they had nothing to hang their hat on. They have no shadow to hide in. So, it is very unusual, and it has a very powerful opinion. I think for that reason alone, it magnifies the impact of the case.
TRACI DEVETTE GRIGGS: Now you mentioned earlier the anti-Christian animus and how you found that to be stunning, and especially from so many different panels of judges. Is this a wakeup call for us? Should we be alarmed as Christians in the marketplace?
MAT STAVER: Well, I think it is a wakeup call because it shows you that some of these judges below, whether it’s in the district court or the Court of Appeals, that is a problem. Most of these cases don’t ever get to the U.S. Supreme Court. So, those that ultimately lose and the Supreme Court doesn’t take up the case, the fact is that you’ve got to have some changes. Consequently, what happens is elections matter because it matters who’s in the White House, who’s nominating these judges at the federal and state level. It matters when we’re electing state judges or having state judges appointed because they’re the ones that are out there making a lot of these decisions, good or bad, consistent or inconsistent with the Constitution. Many of these cases that we otherwise should be winning, like the Shurtleff case here, they don’t ever make it to the U.S. Supreme Court.
So, it’s a big issue and we have to be cognizant of it. But I think the one thing that we want to certainly emphasize is don’t give up. If you’ve been discriminated against, censored in your viewpoint like in this particular case, don’t just simply walk away, because more than your speech is affected. If you don’t challenge it, if you don’t move forward with this kind of a challenge and right the system, then someone else is going to be censored. By lack of challenging, it becomes a policy and a practice of these government officials and they think they can get away with whatever they want to.
TRACI DEVETTE GRIGGS: The recourse is for people to go to organizations such as yours, or what do you recommend?
MAT STAVER: Yeah, absolutely. They need to go to Liberty Council’s website, lc.org. We evaluate these cases. We don’t charge for anyone that we decide to take. We can’t take every single case, but we’ll send out demand letters or we’ll, in this case, take it all the way to the U.S. Supreme Court, whatever is necessary. But this is a great example; it’s a great example that Hal Shurtleff just didn’t give up. When he got denied, he ended up contacting Liberty Council. We looked at his case; we evaluated it; and we didn’t give up. Neither did he, any step along the way, and we have this great victory now with this precedent that will echo through history.
TRACI DEVETTE GRIGGS: Okay, and of course you just gave us your website and that’s very simple—lc.org—and you can go there to follow the good work that Mat Staver and his colleagues are doing. Mat Staver, founder and chairman of Liberty Counsel, thank you so much for being with us on Family Policy Matters.
MAT STAVER: Well, thank you so much and thank you for what you’re doing. God bless.
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