By Andrew Chung

(Reuters). – The U.S. Supreme Court appeared to favor a Christian organization that was sued for free speech over Boston officials refusing to display a flag featuring the image of a cross at City Hall. This challenge was supported by Democratic President Joe Biden.

In an appeal filed by Camp Constitution and Harold Shurtleff (director of Camp Constitution), the justices heard oral arguments. The case was about Boston’s denial in 2017 of its application to fly the Christian cross flag. It had been raised because it might be perceived as an unconstitutional endorsement of one religion. The city was supported by lower courts.

With a conservative majority of 6-3, the Supreme Court has adopted a broad view on religious rights. It has also been more open to argument that governments have shown hostility towards religion.

Boston permitted private parties to use one of three flagpoles located on City Hall’s plaza to fly flags to encourage inclusion and diversity. All 284 requests Boston received between 2005 and 2017 were approved before it rejected Camp Constitution. The majority of flags approved were from foreign countries. However, one was also authorized to commemorate LGBT Pride in Boston.

The question is whether or not the flagpole was a public platform that merited free speech protections according to the First Amendment of the U.S. Constitution. Boston stated it was a conduit for speech by government officials and did not deserve such protection.

Both conservative and liberal justices both questioned the city’s position.

Elena Kagan, a liberal justice, doubts that the cross flag in the case at hand could be an infringement of the First Amendment’s establishment clause. This prohibits the government from creating a state religion.

Kagan explained to a Boston lawyer that “in the context where flags are up and down, people have different types of flags, it is a violation the First Amendment’s free speech section, not an establishment clause violation’.”

Conservative Justice Samuel Alito observed that Boston’s policies seemed to prohibit flags that are discriminatory, offensive, or religious.

Are you creating an environment for private speech when you claim that anyone can talk by raising a flag? Alito asked for a Boston lawyer.

Camp Constitution’s mission was “to increase understanding of Judeo-Christian moral legacy” but it was also “free enterprise” when the rejection occurred in 2018.

The Boston-based 1st U.S. Circuit Court of Appeals ruled the control of flag-raising by the city was government speech.

Biden’s Administration endorsed Camp Constitution, saying in court papers the flagpole was a platform for private speech.

Boston stated that it could be dangerous for it to require others to use the flagpole, in order to encourage division and intolerance such as a Swastika or terrorist groups. Boston suspended applications to the flagpole in October last year due to that risk.

According to the Biden administration, some judges feared that Boston might create and maintain a limited flag-raising program in an effort to avoid such concerns.