Notre Dame Law School’s Religious Freedom Initiative filed an amicus brief this week in Shurtleff v. Boston, a case that calls on the United States Supreme Court to declare that government officials cannot exclude religious expression from the public arena.
In Boston, a municipal program allows private groups and citizens to fly their own flag for a day on a pole outside City Hall to “foster diversity and strengthen ties between many communities of Boston ”. The pole has been used on numerous occasions to display the flags of other countries, private associations and foundations, and movements such as Boston Pride.
In 2017, Harold Shurtleff applied for permission to host a Constitution Day event in Boston City Hall Public Square. Its organization, Camp Constitution, is dedicated to “improving understanding of the country’s Judeo-Christian heritage, the American heritage of courage and ingenuity, the genius of the United States Constitution, and free enterprise.” . In his request to city officials, Shurtleff asked to fly a Christian flag as part of the event.
Citing the establishment clause, city officials rejected Shurtleff’s request to fly the Christian flag. The city responded further by issuing its first formal guidelines for the flagpole: “At no time will the City of Boston display flags deemed inappropriate or offensive in nature or supporting discrimination, prejudice or religious movements. “
Shurtleff sued the city in federal court, arguing that Boston’s denial violated its First Amendment rights. He said the city created a public forum with the flagpole and then denied him the right to use it because of his religious views. The city countered that the flag raising amounted to a government speech, so the flagpole is not a public forum. The United States Court of Appeals for the First Circuit ruled in favor of the city of Boston.
Notre Dame Law School’s Religious Freedom Initiative argues in its amicus brief that the U.S. Supreme Court should overturn the First Circuit’s ruling. The initiative filed the case to ensure that government actors – like the city of Boston – cannot create benefits, opportunities, or platforms that exclude religious believers.
“Citing the specious justification of the ‘government speech’, the city of Boston unconstitutionally chose religious expression for hostile treatment,” said the brief from the Religious Liberty Initiative.
“By grouping discourse based on ‘religion’ with discourse deemed ‘inappropriate’, ‘offensive’, ‘discrimination[atory], ‘or’ prejudice[d], ‘Pet.App.20, the city has adopted the increasingly mainstream view that the promotion of dynamic pluralism in our nation requires the exclusion of religious perspectives from the public arena, ”the brief continues. “But this view is contrary to the Founders’ conception of religion as central – and not peripheral – to our national order. And it is inconsistent with the First Amendment jurisprudence of this Court.
The Religious Liberty Initiative’s amicus brief goes on to explain that governments have become increasingly hostile towards religious speakers in public and, by misinterpreting the Establishment Clause, have excluded religious voices from public discourse.
“From the codes of speech in public universities to advertising policies for public transport, governments have adopted rules that explicitly discriminate against religious discourse,” said the brief. “Far from being mandatory, these policies blatantly violate the First Amendment. “
The brief was submitted by John P. Murphy Foundation Law Professor Nicole Stelle Garnett, Paul J. Schierl / Fort Howard Corp Law Professor. Richard Garnett and Religious Liberty Clinic supervising lawyer John Meiser with attorneys from Dechert LLP in New York and Washington. , CC
Among Dechert’s attorneys who worked on the case are University of Notre Dame graduates Michael McGinley ’06 and Eric Hageman ’13, ’16 JD
“It has been an honor to partner with the Notre Dame Religious Freedom Initiative in this important matter,” said McGinley. “As a graduate of Notre Dame, I am proud of the law school’s strong commitment to protecting religious freedom. “
Three students from this year’s Religious Freedom Initiative cohort – Tim Borgerson, Joseph Graziano and Olivia Rogers – also worked on the case.
“As a student, it was exciting to help write a dissertation that furthered the core Catholic mission of Notre Dame Law School,” said Borgerson. “While the parties and other amici are focusing on the speech aspect of the case, our team has had the opportunity to make creative arguments on the role of religion in public life. The United States has always valued religious expression as a means of promoting unity and civic virtue. “
Graziano added: “It is truly a privilege to attend a school like Notre Dame where we would have such a wonderful opportunity to work alongside excellent lawyers in the defense of religious freedom. This kind of opportunity – writing for the Supreme Court and defending constitutional rights – is just one of the ways Notre Dame sets itself apart from all other law schools. “
The Supreme Court must hear the pleadings in Shurtleff v. Boston January 18. Read the Religious Liberty Initiative’s amicus brief here.
About the Religious Freedom Initiative
Established in 2020, Notre Dame Law School’s Religious Freedom Initiative promotes and defends religious freedom for people of all faiths through scholarships, events, and the Faculty’s Religious Freedom Clinic. by right. The initiative protects the freedom of individuals to hold religious beliefs and their right to exercise, express and live according to those beliefs.
In its first year of operation, the Religious Freedom Initiative represented individuals and organizations from a range of religious traditions to defend the right to religious worship, preserve sacred lands from destruction, promote the freedom of choose religious ministers and prevent discrimination. against religious schools and families.
Learn more at law.nd.edu/RLI.
The photo at the top of this page shows Boston City Hall.
The three flagpoles in front of the building display the American flag, the Massachusetts state flag and the Boston municipal flag. The third pole that displays the municipal flag is the one that Boston uses for the city program in the center of Shurtleff c. Boston.