Supreme Court of the United States · Official docket →
Harold Shurtleff, et al. v. City of Boston, Massachusetts, et al.
Paid petition · United States Court of Appeals for the First Circuit, No. 20-1158 · judgment January 22, 2021
Before the decision, about 2.6× the 4.1% base rate. The model weighted this up for a First Circuit decision below, counsel with five or more prior petitions here, and a circuit split argued in the petition, and down for a state or local-government respondent.
Questions presented
“Where possible, the [City] seeks to accommodate all applicants seeking to take advantage of the City of Boston’s public forums.”1 The City of Boston designated its City Hall Flag Poles as one of several “public forums” for “all applicants,” and encourages private groups to hold flag raising events at and on the Flag Poles “to foster diversity and build and strengthen connections among Boston’s many communities.” Over the course of twelve years, the City approved 284 such flag raisings by private organizations, with zero denials, allowing them to temporarily raise their flags on the City Hall Flag Poles for the limited duration of their events. But when Petitioners’ Christian civic organization, Camp Constitution, applied to raise its flag during a flag raising event to celebrate the civic contributions of Boston’s Christian community, the City denied the request expressly because Camp Constitution’s proposed flag was called “Christian” on the application form but, other than a common Latin cross on the flag itself, there is nothing to identify the flag as a “Christian” flag. The questions presented are:
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Whether the First Circuit’s failure to apply this Court’s forum doctrine to the First Amendment challenge of a private religious organization that was denied access to briefly display its flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, conflicts with this Court’s precedents holding that speech restrictions based on religious viewpoint or content violate the First Amendment or are otherwise subject to strict scrutiny and that the Establishment Clause is not a defense to censorship of private speech in a public forum open to all comers.
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Whether the First Circuit’s classifying as government speech the brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, unconstitutionally expands the government speech doctrine, in direct conflict with this Court’s decisions in Matal v. Tam, 137 S. Ct. 1744 (2017), Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015), and Pleasant Grove City v. Summum, 555 U.S. 460 (2009).
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Whether the First Circuit’s finding that the requirement for perfunctory city approval of a proposed brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants with hundreds of approvals and no denials, transforms the religious organization’s private speech into government speech, conflicts with this Court’s precedent in Matal v. Tam, 137 S. Ct. 1744 (2017), and Circuit Court precedents in New Hope Family Servs., Inc. v. Poole, 966 F.3d 145 (2d Cir. 2020), Wandering Dago, Inc. v. Destito, 879 F.3d 20 (2d Cir. 2018), Eagle Point Educ. Ass'n/SOBC/OEA v. Jackson Cnty. Sch. Dist. No. 9, 880 F.3d 1097 (9th Cir. 2018), and Robb v. Hungerbeeler, 370 F.3d 735 (8th Cir. 2004). 1 Guidelines for any Person or Group Requesting the Use of Faneuil Hall, Sam Adams Park, City Hall Plaza, City Hall Lobby, North Stage or the City Hall Flag Poles, infra pp. 7–8 (emphasis added).
Counsel of record
For petitioner
Mathew D. Staver
Liberty Counsel
For respondent
Douglas Harry Hallward-Driemeier
Ropes & Gray, LLP
Case
Conference history
Distributed for 1 conference
Amicus briefs
1 cert-stage · 23 merits
(17 supporting pet./neither, 6 respondent)
Argument & decision
Argued January 18, 2022 — Mathew Staver · Douglas Hallward-Driemeier. Audio and transcript
Decided May 2, 2022. Opinion by Breyer.
Proceedings
- Jun 03 2022JUDGMENT ISSUED
- May 02 2022Judgment REVERSED and case REMANDED. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Sotomayor, Kagan, Kavanaugh, and Barrett, JJ., joined. Kavanaugh, J., filed a concurring opinion. Alito, J., filed an opinion concurring in the judgment, in which Thomas and Gorsuch, JJ., joined. Gorsuch, J., filed an opinion concurring in the judgment, in which Thomas, J., joined.
- Jan 18 2022Argued. For petitioners: Mathew Staver, Orlando, Fla.; and Sopan Joshi, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondents: Douglas Hallward-Driemeier, Washington, D. C.
- Jan 07 2022Motion of the Solicitor General for leave to participate in oral argument as amicus curiae, for divided argument, and for enlargement of time for oral argument GRANTED.
- Jan 07 2022Reply of Harold Shurtleff, et al. not accepted for filing. (Corrected version submitted)(January 11, 2022)
- Jan 07 2022Reply of petitioners Harold Shurtleff, et al. filed. (Distributed)
- Dec 22 2021Brief amici curiae of National Council of the Churches of Christ in the USA, et al. filed. (Distributed)
- Dec 22 2021Brief amici curiae of Massachusetts, et al. filed. (Distributed)
- Dec 22 2021Brief amici curiae of Jewish Alliance for Law and Social Action, et al. filed. (Distributed)
- Dec 22 2021Brief amici curiae of Local Government Organizations filed. (Distributed)
- Dec 22 2021Brief amici curiae of Freedom From Religion Foundation and Center for Inquiry filed. (Distributed)
- Dec 22 2021Brief amicus curiae of Anti-Defamation League filed. (Distributed)
- Dec 20 2021Motion of the Solicitor General for leave to participate in oral argument as amicus curiae, for divided argument, and for enlargement of time for oral argument filed.
- Dec 15 2021Brief of respondents City of Boston, et al. filed. (Distributed)
- Dec 14 2021CIRCULATED
- Nov 30 2021The record from the U.S.D.C. Dist. of Massachusetts is electronic and located on Pacer.
- Nov 30 2021The record from the U.S.C.A. 1st Circuit is electronic and located on Pacer.
- Nov 22 2021Motion to dispense with printing the joint appendix filed by petitioners GRANTED.
- Nov 22 2021Brief amicus curiae of Bronx Household of Faith filed.
- Nov 22 2021Brief amici curiae of American Civil Liberties Union and American Civil Liberties Union of Massachusetts filed.
- Nov 22 2021Brief amicus curiae of American Cornerstone Institute filed.
- Nov 22 2021Brief amicus curiae of The Becket Fund for Religious Liberty filed.
- Nov 22 2021Brief amicus curiae of United States filed.
- Nov 22 2021Brief amicus curiae of Notre Dame Law School Religious Liberty Initiative filed.
- Nov 22 2021Brief amicus curiae of The American Legion filed.
- Nov 22 2021Brief amicus curiae of The Rutherford Institute filed.
- Nov 22 2021Brief amicus curiae of Thomas More Society filed.
- Nov 22 2021Brief amici curiae of Congressional Prayer Caucus Foundation, et al. filed.
- Nov 22 2021Brief amicus curiae of Protect the First Foundation filed.
- Nov 22 2021Brief amicus curiae of CatholicVote.org Education Fund filed.
- Nov 22 2021Brief amici curiae of Advancing American Freedom and Faith & Freedom Coalition filed.
- Nov 22 2021Brief amici curiae of Kentucky, et al. filed.
- Nov 19 2021Brief amicus curiae of Pacific Legal Foundation filed.
- Nov 17 2021ARGUMENT SET FOR Tuesday, January 18, 2022.
- Nov 17 2021Record requested from the U.S.C.A. 1st Circuit.
- Nov 17 2021Brief amicus curiae of Liberty, Life and Law Foundation filed.
- Nov 16 2021Brief amicus curiae of Foundation for Moral Law filed.
- Nov 15 2021Brief of petitioners Harold Shurtleff, et al. filed.
- Nov 12 2021Motion to dispense with printing the joint appendix filed by petitioners Harold Shurtleff, et al.
- Nov 02 2021Blanket Consent filed by Respondent, City of Boston, et al.
- Oct 27 2021Blanket Consent filed by Petitioner, Harold Shurtleff, et al.
- Sep 30 2021Petition GRANTED.
- Sep 17 2021Reply of petitioners Harold Shurtleff, et al. filed. (Distributed)
- Aug 11 2021DISTRIBUTED for Conference of 9/27/2021.
- Jul 26 2021Brief amici curiae of Congressional Prayer Caucus Foundation, et al. filed.
- Jul 23 2021Brief of respondents City of Boston, et al. in opposition filed.
- Jun 21 2021Petition for a writ of certiorari filed. (Response due July 26, 2021)