Shurtleff v. Boston

(Slip Opinion)              OCTOBER TERM, 2021                                       1

                                       Syllabus

         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., 

.


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
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                                 Syllabus

    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, 

, 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., 

, 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 symbol-
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                              Syllabus

izes 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
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                   KAVANAUGH, J., concurring

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 KAVANAUGH, concurring.
   This dispute arose only because of a government official’s
mistaken understanding of the Establishment Clause. A
Boston official believed that the City would violate the Establishment Clause if it allowed a religious flag to briefly
fly outside of City Hall as part of the flag-raising program
that the City had opened to the public. So Boston granted
requests to fly a variety of secular flags, but denied a request to fly a religious flag. As this Court has repeatedly
made clear, however, a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs,
benefits, facilities, and the like. See, e.g., Zelman v.
Simmons-Harris, 

 (2002). On the contrary, a
government violates the Constitution when (as here) it excludes religious persons, organizations, or speech because
of religion from public programs, benefits, facilities, and the
like. See, e.g., Espinoza v. Montana Dept. of Revenue, 

 (2020); Good News Club v. Milford Central School,

 (2001); McDaniel v. Paty, 

 (1978).
Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech
as second-class.
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                ALITO, J., concurring in judgment

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 ALITO, with whom JUSTICE THOMAS and
JUSTICE GORSUCH join, concurring in the judgment.
   I agree with the Court’s conclusion that Boston (hereafter
City) violated the First Amendment’s guarantee of freedom
of speech when it rejected Camp Constitution’s application
to fly what it characterized as a “Christian flag.” But I cannot go along with the Court’s decision to analyze this case
in terms of the triad of factors—history, the public’s perception of who is speaking, and the extent to which the government has exercised control over speech—that our decision
in Walker v. Texas Div., Sons of Confederate Veterans, Inc.,

 (2015), derived from Pleasant Grove City v.
Summum, 

 (2009). See ante, at 6–12. As the
Court now recognizes, those cases did not set forth a test
that always and everywhere applies when the government
claims that its actions are immune to First Amendment
challenge under the government-speech doctrine. And
treating those factors as a test obscures the real question in
government-speech cases: whether the government is
speaking instead of regulating private expression.
                            I
  The government-speech doctrine recognizes that the Free
Speech Clause of the First Amendment “restricts government regulation of private speech” but “does not regulate
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                ALITO, J., concurring in judgment

government speech.” Summum, 

. That
doctrine presents no serious problems when the government speaks in its own voice—for example, when an official
gives a speech in a representative capacity or a governmental body issues a report. But courts must be very careful
when a government claims that speech by one or more private speakers is actually government speech. When that
occurs, it can be difficult to tell whether the government is
using the doctrine “as a subterfuge for favoring certain private speakers over others based on viewpoint,” 

,
and the government-speech doctrine becomes “susceptible
to dangerous misuse,” Matal v. Tam, 

, ___–___
(2017) (slip op., at 13–14).
   In Tam, for example, the United States defended a statutory provision that permitted the Patent and Trademark
Office to deny federal registration to “disparag[ing]” marks,

(a), on the theory that “the registration of
a trademark converts the mark into government speech.”
582 U. S., at ___ (slip op., at 17). We rejected that argument
and held that because the Government’s role in registration
was limited to applying a standard of assessment to marks
generated by private parties, registered marks are not government speech. Id., at ___–___ (slip op., at 12–14). But
the Government’s position had radical implications: If registration transforms trademarks into government speech,
the same logic would presumably hold for other speech included on systems of government registration. Books on the
copyright registry, for example, would count as the Government’s own speech—presumably subject to editorial control. And the Government would be free to exclude authors
from copyright protection based on their views. Id., at ___–
___ (slip op., at 17–18).
   To prevent the government-speech doctrine from being
used as a cover for censorship, courts must focus on the
identity of the speaker. The ultimate question is whether
the government is actually expressing its own views or the
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                ALITO, J., concurring in judgment

real speaker is a private party and the government is surreptitiously engaged in the “regulation of private speech.”
Summum, 

. But our precedent has never
attempted to specify a general method for deciding that
question, and the Court goes wrong in proceeding as though
our decisions in Walker and Summum settled on anything
that might be considered a “government-speech analysis.”
Ante, at 6. In both cases, we employed a fact-bound totalityof-the-circumstances inquiry that relied on the factors that
appeared helpful in evaluating whether the speech at issue
was government or private speech. See Walker, 576 U. S.,
at 210–213; Summum, 555 U. S., at 470–478. We did not
set out a test to be used in all government-speech cases, and
we did not purport to define an exhaustive list of relevant
factors. And in light of the ultimate focus of the government-speech inquiry, each of the factors mentioned in those
cases could be relevant only insofar as it sheds light on the
identity of the speaker. When considered in isolation from
that inquiry, the factors central to Walker and Summum
can lead a court astray.
   Consider first “the extent to which the government has
actively shaped or controlled the expression.” Ante, at 6.
Government control over speech is relevant to speaker identity in that speech by a private individual or group cannot
constitute government speech if the government does not
attempt to control the message. But control is also an essential element of censorship. Consider this example. The
British Licensing Act of 1737, 10 Geo. II c. 28, §1, in 17 Eng.
Stat. at Large 140 (1765), as amended by the Theatres Act
of 1843, 6 & 7 Vict. c. 68, §2 (1843), prohibited the performance of any “interlude, tragedy, comedy, opera, play,
farce, or other entertainment” without a patent issued by
the King of England or a “License from the Lord Chamberlain of Her Majesty’s Household.” Ibid. This regime attracted criticism precisely because it gave the Lord Chamberlain extensive “control over the nature and content,”
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                 ALITO, J., concurring in judgment

ante, at 6, of covered performances. One of the leading critics of the Act—the playwright George Bernard Shaw—was
denied permission to perform several plays, including Mrs.
Warren’s Profession, The Shewing-up of Blanco Posnet, and
Press Cuttings.1 But had the Lord Chamberlain approved
these plays, would anyone seriously maintain that those
plays were thereby transmuted into the government’s
speech?
   As this illustration shows, neither “control” nor “final approval authority” can in itself distinguish government
speech from censorship of private speech, and analyzing
that factor in isolation from speaker identity flattens the
distinction between government speech and speech tolerated by the censor. And it is not as though “actively” exercising control over the “nature and content” of private expression makes a difference, as the Court suggests, ibid.
Censorship is not made constitutional by aggressive and direct application.
   Next, turn to the history of the means of expression. Ibid.
Historical practice can establish that a means of expression
“typically represent[s] government speech.” Summum, 

 (emphasis added); Tam, 582 U. S., at ___ (slip
op., at 17). But in determining whether speech is the government’s, the real question is not whether a form of expression is usually linked with the government but whether
the speech at issue expresses the government’s own message. Governments can put public resources to novel uses.
And when governments allow private parties to use a resource normally devoted to government speech to express
their own messages, the government cannot rely on historical expectations to pass off private speech as its own. Cf.
Summum, 

 (explaining that even though
monuments in parks are normally government speech, that
——————
  1 See generally L. Hugo, Edwardian Shaw: The Writer and His Age

197–230 (1999).
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                ALITO, J., concurring in judgment

would not be true if “a town created a monument on which
all of its residents (or all those meeting some other criterion) could place the name of a person to be honored or some
other private message”).
   This case exemplifies the point. Governments have long
used flags to express government messages, so this factor
provides prima facie support for Boston’s position under the
Court’s mode of analysis. Ante, at 7–9. But on these facts,
the history of flags clearly cannot have any bearing on
whether the flag displays express the City’s own message.
The City put the flagpoles to an unorthodox use—allowing
private parties to use the poles to express messages that
were not formulated by City officials. Treating this factor
as significant in that circumstance loads the dice in favor of
the government’s position for no obvious reason.
   Now consider the third factor: “the public’s likely perception as to who (the government or a private person) is
speaking.” Ante, at 6. Our earlier government-speech precedents recognized that “the correct focus” of the government-speech inquiry “is not on whether the . . . reasonable
viewer would identify the speech as the government’s,” Johanns v. Livestock Marketing Assn., 

(2005), and with good reason. Unless the public is assumed
to be omniscient, public perception cannot be relevant to
whether the government is speaking, as opposed merely appearing to speak. Focusing on public perception encourages
courts to categorize private expression as government
speech in circumstances in which the public is liable to
misattribute that speech to the government. This case once
again provides an apt illustration. As the Court rightly
notes, “[a] passerby on Cambridge Street” confronted with
a flag flanked by government flags standing just outside the
entrance of Boston’s seat of government would likely conclude that all of those flags “conve[y] some message on the
government’s behalf.” Ante, at 9 (internal quotation marks
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                ALITO, J., concurring in judgment

omitted). If that is the case, this factor supports the exclusion of private parties from using the flagpoles even though
the government allows private parties to use the flagpoles
to express private messages, presumably because those
messages may be erroneously attributed to the government.
But there is no obvious reason why a government should be
entitled to suppress private views that might be attributed
to it by engaging in viewpoint discrimination. The government can always disavow any messages that might be mistakenly attributed to it.
  The factors relied upon by the Court are thus an uncertain guide to speaker identity. But beyond that, treating
these factors as a freestanding test for the existence of government speech artificially separates the question whether
the government is speaking from whether the government
is facilitating or regulating private speech. Under the
Court’s factorized approach, government speech occurs
when the government exercises a “sufficient” degree of control over speech that occurs in a setting connected with government speech in the eyes of history and the contemporary
public, regardless of whether the government is actually
merely facilitating private speech. This approach allows
governments to exploit public expectations to mask censorship.
  And like any factorized analysis, this approach cannot
provide a principled way of deciding cases. The Court’s
analysis here proves the point. The Court concludes that
two of the three factors—history and public perception—favor the City. But it nonetheless holds that the flag displays
did not constitute government speech. Why these factors
drop out of the analysis—or even do not justify a contrary
conclusion—is left unsaid. This cannot be the right way to
determine when governmental action is exempt from the
First Amendment.
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                ALITO, J., concurring in judgment

                               II
                               A
   I would resolve this case using a different method for determining whether the government is speaking. In my
view, the minimum conditions that must be met for expression to count as “government speech” can be identified by
considering the definition of “government speech” and the
rationale for the government-speech doctrine. Under the
resulting view, government speech occurs if—but only if—
a government purposefully expresses a message of its own
through persons authorized to speak on its behalf, and in
doing so, does not rely on a means that abridges private
speech.
   Defined in literal terms, “government speech” is “speech”
spoken by the government. “Speech,” as that term is used
in our First Amendment jurisprudence, refers to expressive
activity that is “intended to be communicative” and, “in context, would reasonably be understood . . . to be communicative.” Clark v. Community for Creative Non-Violence, 

 (1984); see also Hurley v. Irish-American
Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S
557, 569 (1995). Our government-speech precedents have
worked with largely the same definition. See, e.g., Summum, 

 (accepting monument for placement
in a city park “constitute[d] government speech” because
the monuments were “meant to convey and have the effect
of conveying a government message”); Walker, 576 U. S., at
214 (similar). And although this definition of “speech” is
not fully precise, the purposeful communication of the
speaker’s own message generally qualifies as “speech.”
   For “speech” to be spoken by the government, the relevant act of communication must be government action.
Governments are not natural persons and can only communicate through human agents who have been given the
power to speak for the government. When individuals
charged with speaking on behalf of the government act
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                   ALITO, J., concurring in judgment

within the scope of their power to do so, they “are not speaking as citizens for First Amendment purposes.” Garcetti v.
Ceballos, 

 (2006). And because “speech”
requires the purposeful communication of the speaker’s
own message, the message expressed must have been formulated by a person with the power to determine what messages the government will communicate. In short, the government must “se[t] the overall message to be
communicated” through official action. Johanns, 

.
   Government speech is thus the purposeful communication of a governmentally determined message by a person
exercising a power to speak for a government. But not all
governmental activity that qualifies as “government
speech” in this literal and factual sense is exempt from First
Amendment scrutiny. For although we have said that the
Free Speech Clause “has no application” when a government is “engaging in [its] own expressive conduct,” Summum, 

, we have also recognized that “the
Free Speech Clause itself may constrain the government’s
speech” under certain conditions, as when a “government
seeks to compel private persons to convey the government’s
speech.” Walker, 576 U. S., at 208; see also Wooley v.
Maynard, 

 (1977); West Virginia Bd. of Ed. v.
Barnette, 

 (1943).
   That is because the government-speech doctrine is not
based on the view—which we have neither accepted nor rejected—that governmental entities have First Amendment
rights. See United States v. American Library Assn., Inc.,

, 210–211 (2003); Columbia Broadcasting System, Inc. v. Democratic National Committee, 

, and n. 7 (1973) (Stewart, J., concurring).2 Instead, the
——————
  2 The text of the First Amendment also seems to exclude the possibility

that the Federal Government has a constitutional right to speak, since it
prohibits “Congress” and other federal entities and actors from “abridging the freedom of speech.” A different analysis might be called for in a
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                   ALITO, J., concurring in judgment

doctrine is based on the notion that governmental communication—and the exercise of control over those charged by
law with implementing a government’s communicative
agenda—do not normally “restrict the activities of . . . persons acting as private individuals.” Rust v. Sullivan, 

, 198–199 (1991); see also Summum, 

 (“The Free Speech Clause restricts government regulation of private speech”); Rosenberger v. Rector and Visitors
of Univ. of Va., 

, 833–835 (1995). So government speech in the literal sense is not exempt from First
Amendment attack if it uses a means that restricts private
expression in a way that “abridges” the freedom of speech,
as is the case with compelled speech. Were it otherwise,
virtually every government action that regulates private
speech would, paradoxically, qualify as government speech
unregulated by the First Amendment. Naked censorship of
a speaker based on viewpoint, for example, might well constitute “expression” in the thin sense that it conveys the
government’s disapproval of the speaker’s message. But
plainly that kind of action cannot fall beyond the reach of
the First Amendment.
   It follows that to establish that expression constitutes
government speech exempt from First Amendment attack,
the government must satisfy two conditions. First, it must
show that the challenged activity constitutes government
speech in the literal sense—purposeful communication of a
governmentally determined message by a person acting
within the scope of a power to speak for the government.
Second, the government must establish it did not rely on a

——————
case in which the Federal Government attempts to restrict the speech of
another sovereign. If the States had First Amendment rights against
the Federal Government at the time of ratification, it is not obvious why
that right would be eliminated by the incorporation of the speech rights
of private citizens against the States through the Fourteenth Amendment.
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                ALITO, J., concurring in judgment

means that abridges the speech of persons acting in a private capacity. It is only then that “the Free Speech Clause
has no application.” Summum, 

.
   This framework explains the conditions under which government communication that relies on private parties can
constitute government speech. Our precedents recognize
two ways in which a government can speak using private
assistance. First, the government can prospectively “enlis[t] private entities to convey its own message,” Rosenberger, 

, by deputizing private persons as
its agents. See Johanns, 544 U. S., at 560–562, and n. 4;
Rust, 500 U. S., at 192–200. In that kind of situation, private persons assume a public or quasi-public capacity that
empowers them to speak on behalf of the government. So
long as this responsibility is voluntarily assumed, speech by
a private party within the scope of his power to speak for
the government constitutes government speech.
   Second, the government can “adop[t]” a medium of expression created by a private party and use it to express a
government message. Summum, 555 U. S., at 473–474. In
that circumstance, private parties are not deputized by the
government; instead a private person generates a medium
of expression and transfers it to the government. 

 at
472–474. For the adopted expression to qualify as the government’s, the private party must alienate control over the
medium of expression to the government. And government
actors must put the medium to use to intentionally express
a government message. Compare 

 at 473–475 (holding
that a government adopted donated monument because it
“took ownership of that monument and put it on permanent
display in a park that it owns and manages”), with Tam,
582 U. S., at ___, ___–___ (slip op., at 5, 12–15) (no adoption
occurred because governments neither produced nor took
ownership of privately generated trademarks). Otherwise,
the government is simply providing a forum for private parties to submit their own productions and usual First
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                    ALITO, J., concurring in judgment

Amendment principles apply. And to avoid running afoul
of the prohibition on compelled speech, that alienation must
be voluntary.3
   This approach also explains the circumstances in which
we have concluded that the government is not speaking.
We have repeatedly held that the government-speech doctrine does not extend to private-party speech that is merely
subsidized or otherwise facilitated by the government. See,
e.g., Legal Services Corporation v. Velazquez, 

 (2001); Board of Regents of Univ. of Wis. System v.
Southworth, 

 (2000); Rosenberger, 515
U. S., at 833–834. Facilitating speech by private persons
cannot constitute government speech unless the government assigns a power to speak to those persons or appropriates the products of their expressive activity to express its
own message. When the government’s role is limited to applying a standard of assessment to determine a speaker’s
eligibility for a benefit, the government is regulating private speech, and ordinary First Amendment principles apply. Tam, 582 U. S., at ___–___ (slip op., at 13–14).
   For analogous reasons, private-party expression in any
type of forum recognized by our precedents does not constitute government speech. A forum, by definition, is a space

——————
   3 The place of Walker within this framework warrants comment. In

that case, properly understood, the government claimed to have adopted
specialty-license-plate designs submitted by private parties and actually
did “ow[n] the designs on its license plates,” Walker v. Texas Div., Sons
of Confederate Veterans, Inc., 

, 212 (2015). But it was not
obvious how designs such as “Rather Be Golfing” could possibly express
a government message. 

 (ALITO, J., dissenting). In other
words, although the private parties alienated control over the plate designs, the government did not have any purpose to communicate, and
instead allowed private parties to use personal plates to communicate
their own messages. This expansive understanding of government
speech by adoption should be confined to government-issued IDs. As we
have said, Walker “likely marks the outer bounds of the government-speech doctrine.” Matal v. Tam, 

, ___ (2017) (slip op., at 17).
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for private parties to express their own views. The government can of course speak as a participant in a forum, but
the creation of a space for private discourse does not involve
expressing a governmental message, deputizing private
parties to express it, or adopting a private party’s contribution as a vehicle of government speech. So when examination of the government’s “policy and practice” indicates that
the government has “intentionally open[ed] a nontraditional forum for public discourse,” a court may immediately
infer that private-party expression in the forum is not government speech. Cornelius v. NAACP Legal Defense & Ed.
Fund, Inc., 

 (1985). There is no need to
consider history, public perception, or control in the abstract.
                              B
   Analyzed under this framework, the flag displays were
plainly private speech within a forum created by the City,
not government speech. The record attests that the City’s
application materials—which were the only written form of
guidance available on the program prior to the adoption of
a written policy in 2018—characterized the flagpoles as one
of the City’s “public forums.” App. to Pet. for Cert. 137a.
The application guidelines did not enumerate any criteria
for access to the flagpoles that go beyond those typical of a
resource that has been made generally available to the public. 

 at 137a–140a. The first rejection of an application
was the denial of Camp Constitution’s application in 2017.

 at 150a–158a. Prior to then, the City never rejected any
request to raise a flag submitted by any private party. And
private speakers accounted for 78% of the flag-raising applicants. See Reply Brief 8.
   A program with this design cannot possibly constitute
government speech. The City did nothing to indicate an intent to communicate a message. Clark, 

.
Nor did it deputize private speakers or appropriate private-
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                ALITO, J., concurring in judgment

party expressive content. The flags flown reflected a dizzying and contradictory array of perspectives that cannot be
understood to express the message of a single speaker. For
example, the City allowed parties to fly the gay pride flag,
App. to Pet. for Cert. 142a, but it allowed others to fly the
flag of Ethiopia, 

 at 174a, a country in which “homosexual act[s]” are punishable by “imprisonment for not less
than one year.” The Crim. Code of Fed. Democratic Republic of Eth. 2004, Arts. 629 and 630, Proclamation No.
414/2004. Indeed, the City disclaimed virtually all messages expressed by characterizing the flagpoles as a “public
forum” and adopting access criteria consistent with generalized public use. The City’s policy and practice thus
squarely indicate an intent to open a public forum for any
private speakers who met the City’s basic criteria. The requirement of viewpoint neutrality applies to any forum of
this kind. Cornelius, 

.
   As the Court rightly holds, denying Shurtleff ’s application to use that forum constituted impermissible viewpoint
discrimination. Ante, at 12–13. The City’s stated reason
for rejecting Camp Constitution’s application was an unwritten “policy and practice” of “ ‘refrain[ing] from flying
non-secular flags on the City Hall flagpoles.’ ” App. to Pet.
for Cert. 153a–154a. But as we have recognized, religion
constitutes a viewpoint, and “speech discussing otherwise
permissible subjects cannot be excluded from a limited public forum on the ground that the subject is discussed from a
religious point of view.” Good News Club v. Milford Central
School, 

 (2001); Rosenberger, 

.
   The City’s decision was grounded in a belief that “[e]stablished First Amendment jurisprudence” prohibits a government from allowing a private party to “fly a [r]eligious flag
on public property.” App. to Pet. for Cert. 153a–154a. But
“[m]ore than once,” this Court has “rejected the position
14                      SHURTLEFF v. BOSTON

                    ALITO, J., concurring in judgment

that the Establishment Clause even justifies, much less requires, a refusal to extend free speech rights to religious
speakers who participate in broad-reaching government
programs neutral in design.” Rosenberger, 

; see also Good News Club, 

; Lamb’s
Chapel v. Center Moriches Union Free School Dist., 

 (1993). Indeed, excluding religious messages from
public forums that are open to other viewpoints is a “denial
of the right of free speech” indicating “hostility to religion”
that would “undermine the very neutrality the Establishment Clause requires.” Rosenberger, 515 U. S., at 845–846;
see also Board of Ed. of Westside Community Schools (Dist.
66) v. Mergens, 

 (1990) (plurality opinion).
   Although developments in City policy postdating the denial of Shurtleff ’s application are not relevant to whether
that act constituted a First Amendment violation, it should
be emphasized that the City’s adoption of a written policy
in October 2018 did not to convert the flag displays into government speech. The policy’s principal provision specified
that the City will not “display flags deemed to be inappropriate or offensive in nature or those supporting discrimination, prejudice, or religious” viewpoints. App. in No. 20–
1158 (CA1), p. 570 (App).4 That provision did not identify a

——————
   4 The policy included six other rules specifying that: (1) flag raisings

must occur on “a normal business work day, generally between the hours
of 10:00 am and 3:00 pm”; (2) flag raisings must be open to the public and
“[g]uests must adhere to the City of Boston policy not to discriminate on
the basis of sex, race, religion, etc.”; (3) guests must deliver the “guest
flag” to City personnel before the raising and retrieve it after; (4) events
must be consistent with the City’s “sustainability” policy; (5) flags may
be lowered to comply with the U. S. Flag Code; and (6) flags will normally
be flown for 24 hours or fewer. App. 570. These criteria do not suggest
purposeful communication of a government message. The policy also reserved “sole and complete discretion” to refuse to fly any flag. Id., at 569.
But this reservation unbridled discretionary control over access to a government-owned medium of expression cannot establish that a speaker
permitted to speak through the medium is speaking for the government.
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                   ALITO, J., concurring in judgment

message the City intended to express; it simply codified the
City’s prior exclusion of speakers expressing a “religious
viewpoint” and extended it to messages deemed “offensive,”
despite the “bedrock First Amendment principle” that
“[s]peech may not be banned on the ground that it expresses
ideas that offend.” Tam, 582 U. S., at ___–___ (slip op., at
1–2).
   In briefing before this Court, counsel for the City argued
that despite all appearances to the contrary, the City actually did intend to express a message through the flag-raising program: The City’s support for “the diverse national
heritage of the City’s population.” Brief for Respondents 19.
All other flag raisings, the City claims, occurred “in connection with some publicly designated date of observance.”
Ibid. This argument is a transparent attempt to reverse
engineer a governmental message from facts about the flag
raisings that occurred. It is true that many of the flag raisings from 2007 to 2015 celebrated nationalities. App. to
Pet. for Cert. 173a–187a. But these events were conducted
by private organizations to express their own support for
the relevant national communities. Neither the City’s application guidance nor the 2018 written policy singled out a
connection with a nationality commemoration as a condition of access to the flagpoles. The City never cited this
purported requirement in its rejection of the applications it
denied. And the City approved flags that had nothing to do
with nationality or official holidays, such as the “Metro
Credit Union Flag Raising” mentioned by the Court.
   Even if the City had reserved the flagpoles for nationality
commemorations and official holidays, that would only
mean that the City had reserved the flagpoles “for certain
groups or for the discussion of certain topics” and created a
nonpublic forum, not that it had engaged in government
——————
Instead, such discretionary authority is a hallmark of a standardless system of censorship.
16                  SHURTLEFF v. BOSTON

                ALITO, J., concurring in judgment

speech. Rosenberger, 

; see also Perry Ed.
Assn. v. Perry Local Educators’ Assn., 

(1983) (“Implicit in the concept of the nonpublic forum is the
right to make distinctions in access on the basis of subject
matter and speaker identity”). Had the City restricted use
of the flagpoles to these subject matters, it could have relied
on the forum’s topical limitations to deny applications to
host events. But it could not have employed viewpoint-discriminatory criteria to bar otherwise-eligible speakers from
expressing their own views on those subjects.
   On this record, however, the only viable inference is that
the City had no policy restricting access to the forum apart
from the modest access conditions articulated in the application materials. Having created a forum with those characteristics, the City could not reject Shurtleff ’s application
on account of the religious viewpoint he intended to express.
For that reason, I agree with the Court’s ultimate conclusion and concur in the judgment.
                  Cite as: 

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                    GORSUCH
               GORSUCH        , J., concurring
                      , J., concurring  in judgment

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 

 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, 

 (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, 

, ___ (2019) (slip op., at 8),
Lemon sought to devise a one-size-fits-all test for resolving
Establishment Clause disputes. That project bypassed any
2                  SHURTLEFF v. BOSTON

                   GORSUCH
              GORSUCH        , J., concurring
                     , J., concurring  in judgment

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
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                      GORSUCH
                 GORSUCH        , J., concurring
                        , J., concurring  in judgment

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, 

 (1989); 

 (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, 

, 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, 

, 1160–1161 (CA10 2010).
And that suggestion only raised even more questions. Just
——————
  1 Compare Lynch v. Donnelly, 

, 671–672 (1984) (yes), and

American Civil Liberties Union of Ky. v. Wilkinson, 

, 1099–
1100, 1104 (CA6 1990) (yes), with County of Allegheny v. American Civil
Liberties Union, Greater Pittsburgh Chapter, 

, 578–579
(1989) (no), and Smith v. County of Albemarle, 

, 958–
960 (CA4 1990) (no).
  2 Compare Allegheny, 492 U. S., at 578–581 (yes), and Skoros v. New

York, 

, 3–4 (CA2 2006) (yes), with Kaplan v. Burlington, 

, 1025–1026, 1030–1031 (CA2 1989) (no).
  3 Compare Murray v. Austin, 

 (CA5 1991) (yes), with

Harris v. Zion, 

, 1402 (CA7 1991) (no).
4                   SHURTLEFF v. BOSTON

                    GORSUCH
               GORSUCH        , J., concurring
                      , J., concurring  in judgment

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, 

, 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
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                       GORSUCH
                  GORSUCH        , J., concurring
                         , J., concurring  in judgment

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

——————
   4 It seems possible, too, that these spurious Establishment Clause con-

cerns embolden government officials to treat religion with hostility even
when they don’t rely on Lemon by name. Sometimes colleges seek to
prevent students from engaging in religious speech, labeling expressions
of faith “fighting words.” See Uzuegbunam v. Preczewski, 

,
___–___ (2021) (slip op., at 1–3). Certain public transit systems that sell
advertising space on trains and buses ban religious messages. See Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, 

, ___–___ (2020) (GORSUCH, J., respecting denial of certiorari) (slip op., at 1–2); Northeastern Pa. Freethought Soc. v. County of
Lackawanna Transit Sys., 

, 428–431 (CA3 2019). And some
governments seek to exclude religious groups from using public facilities
or designations available to others. See InterVarsity Christian Fellowship/USA v. University of Iowa, 

, 860–862 (CA8 2021); Bronx
Household of Faith v. Board of Ed., 

 (CA2 2014). All
of these trades resulted in less First Amendment protection and more
needless litigation.
6                      SHURTLEFF v. BOSTON

                       GORSUCH
                  GORSUCH        , J., concurring
                         , J., concurring  in judgment

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. 

, 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.”

 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
——————
   5 See, e.g., McDonald v. Chicago, 

, 767–770 (2010); Giles

v. California, 

 (2008); see also The Pocket Veto Case,

 (1929).
   6 See, e.g., Walz v. Tax Comm’n of City of New York, 

(1970) (upholding tax exemptions for churches because they were supported by “more than a century of our history and uninterrupted practice”); School Dist. of Abington Township v. Schempp, 

(1963) (Brennan, J., concurring) (“[T]he line we must draw between the
permissible and the impermissible is one which accords with history and
faithfully reflects the understanding of the Founding Fathers”);
McGowan v. Maryland, 

, 437–440 (1961) (assessing “the
place of Sunday Closing Laws in the First Amendment’s history”); Torcaso v. Watkins, 

 (1961) (concluding that religious-test
oaths were one of the elements of “the formal or practical” religious establishments that “many of the early colonists left Europe and came here
hoping to” avoid). JUSTICE THOMAS has raised important questions about
this Court’s incorporation of the Establishment Clause against the
States in these cases. But “[e]ven assuming” incorporation, the Clause
“would only protect against an ‘establishment’ of religion as understood
at the founding.” Espinoza v. Montana Dept. of Revenue, 

,
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                       GORSUCH
                  GORSUCH        , J., concurring
                         , J., concurring  in judgment

   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, 

 (Kennedy, J., concurring in judgment in part and dissenting in part).9

——————
___ (2020) (THOMAS, J., concurring) (slip op., at 2).
   7 See, e.g., Marsh v. Chambers, 

 (1983) (surveying

history to determine that “[f]rom colonial times through the founding of
the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom”).
   8 See, e.g., Agostini v. Felton, 

 (1997) (overruling

School Dist. of Grand Rapids v. Ball, 

 (1985), and Aguilar
v. Felton, 

 (1985)); Mitchell v. Helms, 

(2000) (plurality opinion) (overruling Wolman v. Walter, 

(1977), and Meek v. Pittenger, 

 (1975)).
   9 See also, e.g., Salazar v. Buono, 

, 720–721 (2010) (plu-

rality opinion of Kennedy, J., joined in full by ROBERTS, C. J., and in part
by ALITO, J.); Van Orden v. Perry, 

, 699–700 (2005) (BREYER,
J., concurring) (noting “Lemon’s checkered career in the decisional law of
this Court” (internal quotation marks omitted)); 

 at 692–693
(THOMAS, J., concurring) (“This case would be easy if the Court were willing to abandon the inconsistent guideposts it has adopted for addressing
Establishment Clause challenges”); McCreary County v. American Civil
Liberties Union of Ky., 

 (2005) (Scalia, J., joined in full
by Rehnquist, C. J., and THOMAS, J., and in part by Kennedy, J., dissenting) (“[A] majority of the Justices on the current Court . . . have, in separate opinions, repudiated the brain-spun ‘Lemon test’ ”); Board of Ed. of
Kiryas Joel Village School Dist. v. Grumet, 

 (1994)
8                      SHURTLEFF v. BOSTON

                       GORSUCH
                  GORSUCH        , J., concurring
                         , J., concurring  in judgment

   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

 (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.” 

(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.” 

 at 575–577 (internal quotation marks
omitted).
   In American Legion v. American Humanist Association
we underscored the message. 

, ___ (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).

——————
(O’Connor, J., concurring in part and concurring in judgment); Committee for Public Ed. and Religious Liberty v. Regan, 

(1980) (Stevens, J., dissenting) (disparaging “the sisyphean task of trying
to patch together the ‘blurred, indistinct, and variable barrier’ described
in Lemon”).
   10 See also American Legion, 588 U. S., at ___ (THOMAS, J., concurring

in judgment) (slip op., at 7) (“[B]ecause the Lemon test is not good law,
we ought to say so”); id., at ___ (GORSUCH, J., concurring in judgment)
(slip op., at 7) (“Lemon was a misadventure. It sought a ‘grand unified
theory’ of the Establishment Clause but left us only a mess”); id., at ___
(KAVANAUGH, J., concurring) (slip op., at 1) (“As this case again demonstrates, this Court no longer applies the old test articulated in Lemon”).
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               GORSUCH        , J., concurring
                      , J., concurring  in judgment

And again we stressed that the right place to look for guidance lies in “ ‘ “historical practices and understandings.” ’ ”

 at ___ (slip op., at 25) (quoting Town of Greece, 

).
                                 *
   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., 

 (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
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                    GORSUCH
               GORSUCH        , J., concurring
                      , J., concurring  in judgment

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, 

; Feldman v. United States, 

(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, 

 (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, 

 (2001);
Lamb’s Chapel, 508 U. S., at 392–397; Rosenberger v. Rector and Visitors of Univ. of Va., 

, 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
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                      , J., concurring  in judgment

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, 

, 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 

 at 2131–2181. Most of these hallmarks reflect
forms of “coerc[ion]” regarding “religion or its exercise.” Lee
v. Weisman, 

 (1992); 

 (Scalia,
J., dissenting); Van Orden, 

 (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,

 (1961). It has checked government efforts to give churches monopolistic control over civil functions. See Larkin v. Grendel’s Den, Inc., 

(1982). At the same time, it has upheld nondiscriminatory
public financial support for religious institutions alongside
12                     SHURTLEFF v. BOSTON

                       GORSUCH
                  GORSUCH        , J., concurring
                         , J., concurring  in judgment

other entities. See Espinoza v. Montana Dept. of Revenue,

, ___–___ (2020) (slip op., at 18–22); Trinity Lutheran Church of Columbia, Inc. v. Comer, 

,
___–___ (2017) (slip op., at 14–15); Zelman v. Simmons-Harris, 

, 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, 

.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

——————
   11 So, for example, when designing a seal for the new Nation in 1776,

Benjamin Franklin and Thomas Jefferson proposed a familiar Biblical
scene—Moses leading the Israelites across the Red Sea. J. Hutson, Religion and the Founding of the American Republic 50–51 (1998) (Hutson).
The seal ultimately adopted by Congress in 1782 features “the Eye of
Providence” surrounded by “glory” above the motto Annuit Coeptis—“He
[God] has favored our undertakings.” Dept. of State, Bureau of Pub. Affairs, The Great Seal of the United States 4–6 (July 2003). This Court
has recognized that President Washington’s 1789 Thanksgiving Day
Proclamation referred to “a day of public thanksgiving and prayer” and
the role of a “Supreme Being” in “the foundations and successes of our
young Nation.” Van Orden, 545 U. S., at 686–687. And President Jefferson allowed various religious groups to use the Capitol for weekly worship services. Hutson 84–94.
                 Cite as: 

 (2022)           13

                   GORSUCH
              GORSUCH        , J., concurring
                     , J., concurring  in judgment

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.
                    APPENDIX TO OPINION OF GORSUCH, J.


  The Bunker Hill Flag                         The Camp Constitution Flag




                                                Source: App. to Pet. for Cert. 132a




Source: App. to Pet. for Cert. 146a