Shurtleff v. Boston: America’s Struggle With Secularism

Children in the United States are often taught that most colonial settlers left Britain to avoid religious persecution. This classic story of American canon is sometimes framed as part of the explanation for the origins of American secularism. In short, after facing persecution for their religious beliefs, early American colonists developed a value for the separation of church and state. Such notions often overlook contentious and violent periods of American history that fundamentally contradict the concept that America ever truly valued secularism. I consider secularism to be the principle that affirms that religious expression and advocacy must be excluded from politics, public policy, and governance. However, while religious conflict may have been a significant part of America’s past, it has by no means disappeared. The ongoing Supreme Court case, Shurtleff v. Boston, exemplifies the fact that the debate against religious influence in public policy and government is far from over. By evaluating Shurtleff v. Boston, it’s clear that America’s ongoing struggle with anti-secularism is as relevant as ever.

The history of American anti-secularism is extensive and finds its origins in the very inception of the nation. The Bill of Rights is supposed to guarantee our individual civil liberties, including freedom of religion. Yet surprisingly, it only applied to the federal government until the the 14th Amendment’s incorporation doctrine, through the due process clause. In other words, no state could be compelled to uphold its citizens’ individual liberties until the passage of the 14th Amendment unless their state constitution already included these rights. As one might expect, the consequences were far-reaching with regard to anti-secularism. The interests of religious institutions were sometimes seen as one in the same with that of the state. As such, constituents and elected officials would support policies that endorsed and financially supported religious organizations. Debates revolving around state-funded churches were prominent in the early days of the United States. Although there was some opposition to supporting churches with tax money, there was also wide support of the practice. Maryland, Massachusetts, New Hampshire, Vermont, Connecticut and South Carolina all supported churches with taxpayer money post-1776. Laws against blasphemy also existed in many states for decades after the signing of the Constitution. 

However, the historical pervasiveness of Christianity in American political life extends beyond public policy. The preclassical legal theory that was common for the majority of America’s antebellum years was fundamentally grounded in concepts of natural rights. In practice, this meant that legal scholars and professionals were heralded as both lawyers and shepherd guardians of American society who were tasked with upholding a legal ‘divine justice’ Such interpretations of legal theory would eventually phase out by the mid-19th century, but they played a pivotal role in the formation of the United States and its political traditions and customs. 

These manifestations of anti-secularism within the United States have not been relegated to the annals of history. Shurtleff v. Boston reveals the continued relevance of America’s struggle with secularism. The case is as follows: The third flag pole in front of Boston’s City Hall, which is traditionally reserved for the city’s flag, can be temporarily replaced upon request from an organization and after approval from the city. Prior to the case, the city had approved 284 applications over 12 years with no instances of rejections, totalling a number of 50 unique flags. Camp Constitution applied to fly the Christian flag for Constitution Day. The application was rejected by the city of Boston out of concerns that flying the flag would violate the 1st Amendment’s establishment clause. In response Camp Constitution sued but lost at the district court level, leading to the Supreme Court case before us. The question of the case is whether or not the rejection of Camp Constitution’s application to fly the Christian flag was a violation of their 1st Amendment rights. 

During the case’s oral arguments held on January 18th of this year, much of the deliberation to answer this question revolved around whether Boston’s flying of a third party’s flag was an act of government speech. If it was government speech, the city’s rejection of Camp Constitution’s application was constitutional. Matthew Staver and Sopan Joshi, representing Camp Constitution and the US government, respectively, asserted that flying the flag did not constitute government speech. Specifically, they cited precedent in Pleasant Grove City v Summum, arguing there was a lack of “exercised control” by Boston when running the flag-raising program. According to them, the fact that the city had never rejected any previous applications, rarely requested changes to the messages of the organizations, and sometimes did not look at the flag design itself before providing approval demonstrated that Boston did not exercise enough control over the messages for the program to qualify as government speech. 

But upon inspection, this assertion appears less sound. First, as Justice Breyer touched on, there was no need to reject the earlier 50 approved flags as they were all in line with the city’s message as stated in the requirements of the application. Therefore, the mere fact that there were no earlier rejections does not serve as evidence that Camp Constitution was being unjustly denied. Furthermore, the fact that the city did occasionally request edits and that they had the final authority in the approval process could suffice as enough “exercised control” over the message of the program to qualify as government speech. Similar points to these were raised by Douglas Hallward-Driermeier, representing the city of Boston. In fact, Driermeier referred back to the same precedent in Summum, pointing out that the decision made it clear that if the government has the final authority over whether or not something is said or displayed, it can constitute an expression of government speech. Many justices did not seem convinced by this argument, however, despite the fact that siding against Boston in this decision would run counter to their earlier position in Summum.

In fact, multiple justices, including Justices Kagan and Kavanaugh, strongly asserted that the rejection of Camp Constitution’s application on the grounds of the establishment clause was an obvious mistake that should have been corrected. This stance and the overall tone of the arguments made in Shurtleff are indicative of just how deeply ingrained anti-secular sentiments are in the United States government. Replacing Boston’s flag with the Christian flag that is used by churches across the world clearly endorsed and supported one particular religion over others. The fact that Camp Constitution deliberately chose the Christian flag over their own organization’s flag suggests that they were indeed endorsing religion. 

The Supreme Court’s lack of commitment to secularism should not be surprising. The current court under Justice Roberts has ruled favorably on the side of religion in 81 percent of the cases in which it could do so—for instance, by allowing religious exemptions to Obamacare regulations and rules for school funding. This phenomenon is relatively new and further cements that America’s struggle with secularism is ongoing and potentially becoming more contentious. Within the last decade, state legislators in North Carolina attempted to institute an official state religion. One third of Americans believe that the government’s policies should support religious views, and church membership has actually consistently trended upward since the founding of the nation. Perhaps the most striking consequence of this reality has been a rollback of abortion rights. Unfortunately, after Shurtleff, it is unlikely that such consequences will end soon.