There’s a lot of well-meaning advice against retreat, often offered in the context of war by people who are not themselves on the front lines. Yet, when it comes to the courtroom battle now being waged over a flagpole on Boston City Hall plaza, the opposite sentiment, as expressed by Norman Vincent Peale, is worth considering: “Part of the happiness of life consists not in fighting battles, but in avoiding them. A masterly retreat is in itself a victory.”
In this instance, retreat means ending the policy that allows public use of a City Hall flagpole. Given the legal tangle over free speech issues the flagpole has created for Boston — and could create for other cities and government entities if the Supreme Court rules against the city — it may be wise for Mayor Michelle Wu to end the policy now and negotiate a settlement with the plaintiff.
Under current policy, Boston has allowed a wide variety of flags to be flown on City Hall Plaza. Over time, this has included everything from flags celebrating Boston Pride and Juneteenth to flags of other countries. Indeed, from 2005 to 2017, the city approved 284 consecutive requests.
Then, in September 2017, the city refused to let Harold Shurtleff, a conservative activist and director of a private group, Camp Constitution, raise a flag featuring a red cross inside a blue box — called a Christian flag. The group sued, and a federal appeals court sided with the city. However, the Supreme Court agreed to take up the case, and that’s when, as Globe columnist Kimberly Atkins Stohr, wrote, “an interesting thing happened: The Biden administration and the ACLU backed Shurtleff.”
And Supreme Court justices appear to be leaning that way, too.
The city argued that raising the Christian flag would make it look like the government is sponsoring religious speech. But the group said the city’s rebuff violated its First Amendment rights. In its brief, the group argued that the city’s application form designates the flagpoles as one of “Boston’s public forums” open to “all applicants” for private speech. So why isn’t the flagpole open to these particular applicants? As Justice Department lawyer Sopan Joshi argued, “The city has some discretion, but it probably means that if it permits a group to raise a Black Lives Matter flag, they probably would have to be able to raise a Proud Boys flag. I mean, that’s just what the First Amendment demands.”
Supreme Court justices seem to agree. As The New York Times reported, “Justices across the ideological spectrum . . . seemed ready to rule that the city had violated the free speech rights of Camp Constitution.” Some of the justices also seemed to be telegraphing a message to Boston that it should fix the mess created by the policy. “This was a mistake,” Justice Elena Kagan said of the city’s approach. “And why is it that people have not been able to correct this mistake?” Added Justice Stephen Breyer: “Can’t it be settled?”
The program is on temporary pause, and no final decision about its fate has been made, according to Rob Arcangeli, assistant corporation counsel for the City of Boston. If the program is restarted, he said, it would be in accordance with any guidance set forth in a Supreme Court decision on the matter.
The city could end the practice for good. But according to Arcangeli, Boston can’t simply end it and then ask the court to dismiss the case, because the complaint seeks damages. The city also seems reluctant to give up the flagpole policy entirely, believing there’s a way to adjust the program so it “retains discretion over the viewpoints expressed over its flagpole,” said Arcangeli.
But a ruling against Boston, depending on how sweeping it is, could make it more difficult for cities across the country to maintain the separation between church and state. Does the City of Boston want to create that risk? In this case, retreat seems the better option.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.