A recent Supreme Court decision reinforces the need for public entities to keep citizens’ and employees’ constitutional rights in mind before limiting expression.
The facts of the case, Shurtleff v. City of Boston, were well-explained by the author of the unanimous opinion, Justice Breyer:
“This case concerns a flagpole outside Boston City Hall. For years, Boston has allowed private groups to request use of the flagpole to raise flags of their choosing. As part of this program, Boston approved hundreds of requests to raise dozens of different flags. The city did not deny a single request to raise a flag until, in 2017, Harold Shurtleff, the director of a group called Camp Constitution, asked to fly a Christian flag. Boston refused. At that time, Boston admits, it had no written policy limiting use of the flagpole based on the content of a flag. The parties dispute whether, on these facts, Boston reserved the pole to fly flags that communicate governmental messages, or instead opened the flagpole for citizens to express their own views. If the former, Boston is free to choose the flags it flies without the constraints of the First Amendment’s Free Speech Clause. If the latter, the Free Speech Clause prevents Boston from refusing a flag based on its viewpoint.”
The Court found that Boston opened the flagpole for citizens to express their views. The reason city employees made the decision is that they wrongly believed allowing the flag would be unconstitutional because it would violate the Establishment Clause of the U.S. Constitution by promoting a religion. Instead, when Boston denied Shurtleff’s request solely because the Christian flag he asked to raise was to promote a specific religion, that refusal was discrimination based on religious viewpoint and violated the Free Speech Clause.
This refusal is a common error of judgment made by managers in the public sector. If an employee wants to express their religious viewpoint, unless it would serve as the viewpoint of the governmental entity, they may do so. For example, wearing certain clothing or jewelry is typically a personal expression and not the viewpoint of the governmental entity, even if the employee also wears a uniform. Changing the uniform itself would be a different matter and likely would be a disciplinary offense.
If you have questions, contact Employers Council by email or call 800-884-1328.
#GovernmentAgency#Discrimination