Shurtleff v. Boston

P R E L I M I N A R Y P R I N T
Volume 596 U. S. Part 1
Pages 243–288
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
May 2, 2022
REBECCA A. WOMELDORF
reporter of decisions
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OCTOBER
TERM, 2021
243
Syllabus
SHURTLEFF et al. v. CITY OF BOSTON et al.
certiorari
to the united states court of appeals for
the rst circuit
No. 20–1800. Argued January 18, 2022—Decided May 2, 2022
Just outside the entrance to Boston City Hall, on City Hall Plaza, stand
three fagpoles. Boston fies the American fag from the frst pole and
the fag of the Commonwealth of Massachusetts from the second. Bos-
ton usually fies the city's own fag from the third pole. But Boston has,
for years, allowed groups to hold ceremonies on the plaza during which
participants may hoist a fag of their choosing on the third pole in place
of the city's fag. Between 2005 and 2017, Boston approved the raising
of about 50 unique fags for 284 such ceremonies. Most of these fags
were other countries', but some were associated with groups or causes,
such as the Pride Flag, a banner honoring emergency medical service
workers, and others. In 2017, Harold Shurtleff, the director of an orga-
nization called Camp Constitution, asked to hold an event on the plaza
to celebrate the civic and social contributions of the Christian commu-
nity; as part of that ceremony, he wished to raise what he described as
the “Christian fag.” The commissioner of Boston's Property Manage-
ment Department worried that fying a religious fag at City Hall could
violate the Establishment Clause and found no past instance of the city's
having raised such a fag. He therefore told Shurtleff that the group
could hold an event on the plaza but could not raise their fag during
it. Shurtleff and Camp Constitution (petitioners) sued, claiming that
Boston's refusal to let them raise their fag violated, among other things,
the First Amendment's Free Speech Clause. The District Court held
that fying private groups' fags from City Hall's third fagpole amounted
to government speech, so Boston could refuse petitioners' request with-
out running afoul of the First Amendment. The First Circuit affrmed.
This Court granted certiorari to decide whether the fags Boston allows
others to fy express government speech, and whether Boston could,
consistent with the Free Speech Clause, deny petitioners' fag-raising
request.
Held:
1. Boston's fag-raising program does not express government speech.
Pp. 251–258.
(a) The Free Speech Clause does not prevent the government from
declining to express a view. See Pleasant Grove City v. Summum, 555
U. S. 460, 467–469. The government must be able to decide what to say
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244 SHUR
TLEFF v. BOSTON
Syllabus
and what not to say when it states an opinion, speaks for the community,
for
mulates policies, or implements programs. The boundary between
government speech and private expression can blur when, as here, the
government invites the people to participate in a program. In those
situations, the Court conducts a holistic inquiry to determine whether
the government intends to speak for itself or, rather, to regulate private
expression. The Court's cases have looked to several types of evidence
to guide the analysis, including: the history of the expression at issue;
the public's likely perception as to who (the government or a private
person) is speaking; and the extent to which the government has ac-
tively shaped or controlled the expression. See Walker v. Texas Div.,
Sons of Con federate Veterans, Inc., 576 U. S. 200, 209–213. Consider-
ing these indicia in Summum, the Court held that the messages of per-
manent monuments in a public park constituted government speech,
even when the monuments were privately funded and donated. See
555 U. S., at 470–473. In Walker, the Court found that license plate
designs proposed by private groups also amounted to government
speech because, among other reasons, the State that issued the plates
“maintain[ed] direct control over the messages conveyed” by “actively”
reviewing designs and rejecting over a dozen proposals. 576 U. S., at
213. On the other hand, in Matal v. Tam, the Court concluded that
trademarking words or symbols generated by private registrants did
not amount to government speech because the Patent and Trademark
Offce did not exercise suffcient control over the nature and content of
those marks to convey a governmental message. 582 U. S. 218, 235–
239. Pp. 251–253.
(b) Applying this government-speech analysis here, the Court fnds
that some evidence favors Boston, and other evidence favors Shurtleff.
The history of fag fying, particularly at the seat of government, sup-
ports Boston. Flags evolved as a way to symbolize communities and
governments. Not just the content of a fag, but also its presence and
position have long conveyed important messages about government.
Flying a fag other than a government's own can also convey a govern-
mental message. For example, another country's fag outside Blair
House, across the street from the White House, signals that a foreign
leader is visiting. Consistent with this history, fags on Boston's City
Hall Plaza usually convey the city's messages. Boston's fag symbolizes
the city and, when fying at halfstaff, conveys a community message of
sympathy or somber remembrance. The question remains whether, on
the 20 or so times a year when Boston allowed private groups to raise
their own fags, those fags, too, expressed the city's message. The cir-
cumstantial evidence of the public's perception does not resolve the issue.
The most salient feature of this case is that Boston neither actively con-

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Syllabus
trolled these fag raisings nor shaped the messages the fags sent. To be
sure
, Boston maintained control over an event's date and time to avoid
conficts, and it maintained control over the plaza's physical premises,
presumably to avoid chaos. But the key issue is whether Boston
shaped or controlled the fags' content and meaning; such evidence
would tend to show that Boston intended to convey the fags' messages
as its own. And on that issue, Boston's record is thin. Boston says
that all (or at least most) of the 50 unique fags it approved refect partic-
ular city-endorsed values or causes. That may well be true of fying
other nations' fags, or the Pride Flag raised annually to commemorate
Boston Pride Week, but the connection to other fag-raising ceremonies,
such as one held by a community bank, is more diffcult to discern. Fur-
ther, Boston told the public that it sought “to accommodate all appli-
cants” who wished to hold events at Boston's “public forums,” including
on City Hall Plaza. App. to Pet. for Cert. 137a. The city's application
form asked only for contact information and a brief description of the
event, with proposed dates and times. The city employee who handled
applications testifed that he did not request to see fags before the
events. Indeed, the city's practice was to approve fag raisings without
exception—that is, until petitioners' request. At the time, Boston had
no written policies or clear internal guidance about what fags groups
could fy and what those fags would communicate. Boston's control is
therefore not comparable to the degree of government involvement in
the selection of park monuments in Summum, see 555 U. S., at 472–473,
or license plate designs in Walker, see 576 U. S., at 213. Boston's come-
one-come-all practice—except, that is, for petitioners' fag—is much
closer to the Patent and Trademark Offce's policy of registering all man-
ner of trademarks in Matal, see 582 U. S., at 233, 244. All told, Boston's
lack of meaningful involvement in the selection of fags or the crafting
of their messages leads the Court to class the third-party fag raisings
as private, not government, speech. Pp. 253–258.
2. Because the fag-raising program did not express government
speech, Boston's refusal to let petitioners fy their fag violated the Free
Speech Clause of the First Amendment. When the government does
not speak for itself, it may not exclude private speech based on “reli-
gious viewpoint”; doing so “constitutes impermissible viewpoint dis-
crimination.” Good News Club v. Mil ford Central School, 533 U. S. 98,
112. Boston concedes that it denied petitioners' request out of Estab-
lishment Clause concerns, solely because the proposed fag “promot[ed]
a specifc religion.” App. to Pet. for Cert. 155a. In light of the Court's
government-speech holding, Boston's refusal to allow petitioners to raise
their fag because of its religious viewpoint violated the Free Speech
Clause. Pp. 258–259.

246 SHUR
TLEFF v. BOSTON
Syllabus
986 F. 3d 78, reversed and remanded.
Breyer,
J., delivered the opinion of the Court, in which Roberts, C. J.,
and Sotomayor, Kagan, Kavanaugh, and Barrett, JJ., joined. Kava-
naugh, J., fled a concurring opinion, post, p. 261. Alito, J., fled an opin-
ion concurring in the judgment, in which Thomas and Gorsuch, JJ.,
joined, post, p. 261. Gorsuch, J., fled an opinion concurring in the judg-
ment, in which Thomas, J., joined, post, p. 276.
Mathew D. Staver argued the cause for petitioners. With
him on the briefs were Anita L. Staver, Horatio G. Mihet,
and Roger K. Gannam.
Sopan Joshi argued the cause for the United States as
amicus curiae supporting reversal. With him on the brief
were Solicitor General Prelogar, Acting Assistant Attorney
General Boynton, Deputy Solicitor General Fletcher, Mi-
chael S. Raab, and Lowell V. Sturgill, Jr.
Douglas Hallward-Driemeier argued the cause for re-
spondents. With him on the brief were Samuel L. Brenner,
Deanna Barkett FitzGerald, Thanithia Billings, Susan M.
Weise, and Robert S. Arcangeli.*
*Briefs of amici curiae urging reversal were fled for the Common-
wealth of Kentucky et al. by Daniel Cameron, Attorney General of Ken-
tucky, Barry L. Dunn, Deputy Attorney General, S. Chad Meredith, Solic-
itor General, Matthew F. Kuhn, Principal Deputy Solicitor General, Brett
R. Nolan, Deputy Solicitor General, and Daniel J. Grabowski, Assistant
Solicitor General, and by the Attorneys General for their respective States
as follows: Mark Brnovich of Arizona, Leslie Rutledge of Arkansas, Chris-
topher M. Carr of Georgia, Jeff Landry of Louisiana, Eric Schmitt of
Missouri, Austin Knudsen of Montana, Douglas J. Peterson of Nebraska,
Alan Wilson of South Carolina, Herbert H. Slatery III of Tennessee, Sean
Reyes of Utah, and Patrick Morrisey of West Virginia; for Advancing
American Freedom, Inc., et al. by Matthew J. Sheehan and Patrick D.
Purtill, Jr.; for the American Civil Liberties Union et al. by Lisa S. Blatt,
Matthew B. Nicolson, Matthew R. Segal, Ruth A. Bourquin, David D.
Cole, Daniel Mach, Heather L. Weaver, Ben Wizner, Brian Hauss, and
Jennesa Calvo-Friedman; for the American Cornerstone Institute by An-
thony J. Dick and Alex Potapov; for The American Legion by Kelly J.
Shackel ford, Jeffrey C. Mateer, and David J. Hacker; for the Becket Fund
for Religious Liberty by Lori H. Windham; for the Bronx Household of
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247
Opinion of the Court
Justice Breyer delivered the opinion of the Court.
W
hen the government encourages diverse expression—
say, by creating a forum for debate—the First Amendment
prevents it from discriminating against speakers based on
their viewpoint. See Rosenberger v. Rector and Visitors of
Univ. of Va., 515 U. S. 819, 828–830 (1995). But when the
government speaks for itself, the First Amendment does not
Faith by Andrew M. Grossman, John J. Bursch, Jordan W. Lorence, and
Jacob P. Warner; for the Congressional Prayer Caucus Foundation et al.
by Frederick W. Claybrook, Jr., Steven W. Fitschen, and James A. Davids;
for the Liberty, Life and Law Foundation by Deborah J. Dewart; for the
Notre Dame Law School Religious Liberty Initiative by Steven A. Engel,
Michael H. McGinley, Lincoln Davis Wilson, Richard W. Garnett IV, and
John A. Meiser; for the Pacifc Legal Foundation by Deborah J. La Fetra
and Daniel M. Ortner; for Protect the First Foundation by Gene C.
Schaerr, Erik S. Jaffe, Hannah C. Smith, and Kathryn E. Tarbert; for
The Rutherford Institute by D. Alicia Hickok, Elizabeth M. Casey, and
John W. Whitehead; and for the Thomas More Society by Thomas Brejcha
and B. Tyler Brooks.
Briefs of amici curiae urging affrmance were fled for the Common-
wealth of Massachusetts et al. by Maura Healey, Attorney General of
Massachusetts, David C. Kravitz, Deputy State Solicitor, and Phoebe
Fischer-Groban and Grace Gohlke, Assistant Attorneys General, and by
the Attorneys General for their respective jurisdictions as follows: Wil-
liam Tong of Connecticut, Kathleen Jennings of Delaware, Karl A. Racine
of the District of Columbia, Holly T. Shikada of Hawaii, Aaron M. Frey
of Maine, Keith Ellison of Minnesota, Letitia James of New York, Ellen
F. Rosenblum of Oregon, and Mark R. Herring of Virginia; for the Anti-
Defamation League by Susan Baker Manning and Jordan D. Hershman;
for the Freedom from Religion Foundation, Inc., et al. by Patrick C. Elliott
and Richard L. Bolton; for the Jewish Alliance for Law and Social Action
et al. by Ryan P. McManus, Jennifer Grace Miller, Vanessa A. Arslan-
ian, and Kenneth A. Sweder; for Local Government Organizations by Dan-
iel H. Bromberg and Lisa E. Soronen; and for the National Council of the
Churches of Christ in the USA et al. by Charles A. Rothfeld, Andrew J.
Pincus, Paul W. Hughes, Michael B. Kimberly, Richard B. Katskee, and
Eugene R. Fidell.
Briefs of amici curiae were fled for the CatholicVote.org Education
Fund by Scott W. Gaylord; and for the Foundation for Moral Law by John
A. Eidsmoe and Roy S. Moore.
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248 SHUR
TLEFF v. BOSTON
Opinion of the Court
demand airtime for all views. After all, the government
must
be able to “promote a program” or “espouse a policy”
in order to function. Walker v. Texas Div., Sons of Confed-
erate Veterans, Inc., 576 U. S. 200, 208 (2015). The line be-
tween a forum for private expression and the government's
own speech is important, but not always clear.
This case concerns a fagpole outside Boston City Hall.
For years, Boston has allowed private groups to request use
of the fagpole to raise fags of their choosing. As part of
this program, Boston approved hundreds of requests to raise
dozens of different fags. The city did not deny a single re-
quest to raise a fag until, in 2017, Harold Shurtleff, the direc-
tor of a group called Camp Constitution, asked to fy a Chris-
tian fag. Boston refused. At that time, Boston admits, it
had no written policy limiting use of the fagpole based on
the content of a fag. The parties dispute whether, on these
facts, Boston reserved the pole to fy fags that communicate
governmental messages, or instead opened the fagpole for
citizens to express their own views. If the former, Boston
is free to choose the fags it fies without the constraints of
the First Amendment's Free Speech Clause. If the latter,
the Free Speech Clause prevents Boston from refusing a fag
based on its viewpoint.
We conclude that, on balance, Boston did not make the
raising and fying of private groups' fags a form of govern-
ment speech. That means, in turn, that Boston's refusal to
let Shurtleff and Camp Constitution raise their fag based on
its rel ig i ous v iewpoi nt “abr idg[ed] ” their “freedom of
speech.” U. S. Const., Amdt. I.
I
A
The fagpole at issue stands at the entrance of Boston City
Hall. See Appendix, infra. Built in the late 1960s, Boston
City Hall is a raw concrete structure, an example of the bru-
talist style. Critics of the day heralded it as a public build-
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ing that “articulates its functions” with “strength, dignity,
grace
, and even glamor.” J. Conti, A New City Hall: Bos-
ton's Boost for Urban Renewal, Wall Street Journal, Feb.
12, 1969, p. 14. (The design has since proved somewhat
more controversial. See, e. g., E. Mason, Boston City Hall
Named World's Ugliest Building, Boston Herald (Nov. 15,
2008), https://www.bostonherald.com/2008/11/15/ boston-city-
hall-named-worlds-ugliest-building.) More to the point,
Boston City Hall sits on City Hall Plaza, a 7-acre expanse
paved with New England brick. Inspired by open public
spaces like the Piazza del Campo in Siena, the plaza was
designed to be “ `Boston's fairground,' ” a “public gather-
ing spac[e]” for the people. N. DeCosta-Klipa, Why Is Bos-
ton City Hall the Way It Is? Boston.com (July 25, 2018),
https://www.boston.com/news/history/2018/07/25/ boston-city-
hall-brutalism.
On the plaza, near City Hall's entrance, stand three 83-foot
fagpoles. Boston fies the American fag from the frst pole
(along with a banner honoring prisoners of war and soldiers
missing in action). From the second, it fies the fag of the
Commonwealth of Massachusetts. And from the third, it
usually (but not always) fies Boston's fag—a sketch of the
“City on a Hill” encircled by a ring against a blue backdrop.
Boston makes City Hall Plaza available to the public for
events. Boston acknowledges that this means the plaza is a
“public forum.” Brief for Respondents 27. The city's pol-
icy is, “[w]here possible,” “to accommodate all applicants
seeking to take advantage of the City of Boston's public fo-
rums,” including the plaza and the area at the fagpoles' base.
App. to Pet. for Cert. 133a, 137a.
For years, since at least 2005, the city has allowed groups
to hold fag-raising ceremonies on the plaza. Participants
may hoist a fag of their choosing on the third fagpole (in
place of the city's fag) and fy it for the duration of the event,
typically a couple of hours. Most ceremonies have involved
the fags of other countries—from Albania to Venezuela—

250 SHUR
TLEFF v. BOSTON
Opinion of the Court
marking the national holidays of Bostonians' many countries
of
origin. But several fag raisings have been associated
with other kinds of groups or causes, such as Pride Week,
emergency medical service workers, and a community bank.
All told, between 2005 and 2017, Boston approved about 50
unique fags, raised at 284 ceremonies. Boston has no record
of refusing a request before the events that gave rise to this
case. We turn now to those events.
B
In July 2017, Harold Shurtleff, the director of an organiza-
tion called Camp Constitution, asked to hold a fag-raising
event that September on City Hall Plaza. The event would
“commemorate the civic and socia l contributi ons of the
Christian community” and feature remarks by local clergy.
Id., at 130a–131a. As part of the ceremony, the organization
wished to raise what it described as the “Christian fag.”
Id., at 131a. To the event application, Shurtleff attached a
photo of the proposed fag: a red cross on a blue feld against
a white background.
The commissioner of Boston's Property Management De-
partment said no. The problem was “not the content of the
Christian fag,” but “the fact that it was the Christian fag
or [was] called the Christian fag.” App. in No. 20–1158
(CA1), at 212–213 (deposition of then-commissioner Gregory
T. Rooney, hereafter Rooney deposition). The commissioner
worried that fying a religious fag at City Hall could violate
the Constitution's Establishment Clause and found no record
of Boston ever having raised such a fag. He told Shurtleff
that Camp Constitution could proceed with the event if they
would raise a different fag. Needless to say, they did not
want to do so.
C
Shurtleff and Camp Constitution (petitioners) sued Boston
and the commissioner of its Property Management Depart-
ment (respondents). Petitioners claimed that Boston's re-
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251
Opinion of the Court
fusal to let them raise their fag violated, among other things,
the
First Amendment's Free Speech Clause. They asked for
an immediate order requiring Boston to allow the fag rais-
ing, but the District Court denied the request. See 337 F.
Supp. 3d 66 (Mass. 2018), aff 'd, 928 F. 3d 166 (CA1 2019).
The parties engaged in discovery. At its close, they fled
cross-motions for summary judgment. The parties agreed
to all relevant facts and submitted a joint statement setting
them out. App. to Pet. for Cert. 128a–160a.
On that record, the District Court held that fying private
groups' fags from City Hall's third pole amounted to govern-
ment speech. See 613 F. Supp. 3d 528, 535–537 (Mass. 2020).
Hence, the city acted within its constitutional authority in
declining to raise Camp Constitution's fag. Id., at 532–534,
535–537. The District Court therefore granted summary
judgment for Boston. The First Circuit affrmed. See 986
F. 3d 78 (2021).
Shurtleff and Camp Constitution next petitioned this
Court for certiorari. We agreed to decide whether the fags
Boston allows groups to fy express government speech, and
whether Boston could, consistent with the Free Speech
Clause, deny petitioners' fag-raising request.
II
A
The frst and basic question we must answer is whether
Boston's flag-raisi ng program constitutes gover nment
speech. If so, Boston may refuse fags based on viewpoint.
The First Amendment's Free Speech Clause does not pre-
vent the government from declining to express a view. See
Pleasant Grove City v. Summum, 555 U. S. 460, 467–469
(2009). When the government wishes to state an opinion,
to speak for the community, to formulate policies, or to im-
plement programs, it naturally chooses what to say and what
not to say. See Walker, 576 U. S., at 207–208. That must
be true for government to work. Boston could not easily
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252 SHUR
TLEFF v. BOSTON
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congratulate the Red Sox on a victory were the city power-
less
to decline to simultaneously transmit the views of dis-
appointed Yankees fans. The Constitution therefore relies
frst and foremost on the ballot box, not on rules against
viewpoint discrimination, to check the government when it
speaks. See Board of Regents of Univ. of Wis. System v.
Southworth, 529 U. S. 217, 235 (2000).
The boundary between government speech and private ex-
pression can blur when, as here, a government invites the
people to participate in a program. In those situations,
when does government-public engagement transmit the gov-
ernment's own message? And when does it instead create
a forum for the expression of private speakers' views?
In answering these questions, we conduct a holistic inquiry
designed to determine whether the government intends to
speak for itself or to regulate private expression. Our re-
view is not mechanical; it is driven by a case's context rather
than the rote application of rigid factors. Our past cases
have looked to several types of evidence to guide the analy-
sis, including: the history of the expression at issue; the pub-
lic's likely perception as to who (the government or a private
person) is speaking; and the extent to which the government
has actively shaped or control led the expressi on. See
Walker, 576 U. S., at 209–214.
Considering these indicia in Summum, we held that the
messages of permanent monuments in a public park consti-
tuted government speech, even when the monuments were
privately funded and donated. See 555 U. S., at 470–473.
In Walker, we explained that license plate designs proposed
by private groups also amounted to government speech be-
cause, among other reasons, the State that issued the plates
“maintain[ed] direct control over the messages conveyed” by
“actively” reviewing designs and rejecting over a dozen pro-
posals. 576 U. S., at 213. In Matal v. Tam, 582 U. S. 218
(2017), on the other hand, we concluded that trademarking
words or symbols generated by private registrants did not
amount to government speech. Id., at 235–239. Though

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the Patent and Trademark Offce had to approve each pro-
posed
mark, it did not exercise suffcient control over the
nature and content of those marks to convey a governmental
message in so doing. Ibid. These precedents point our
way today.
B
Applying the government-speech analysis to this record,
we fnd that some evidence favors Boston, and other evidence
favors Shurtleff.
To begin, we look to the history of fag fying, particularly
at the seat of government. Were we to consider only that
general history, we would fnd that it supports Boston.
Flags are almost as old as human civilization. Indeed,
flags symbo l ize civilization. From the “primordia l rag
dipped in the blood of a conquered enemy and lifted high on
a stick,” to the feudal banner bearing a lord's coats of arms,
to the standards of the Aztecs, nearly every society has
taken a piece of cloth and “endow[ed] it, through the circum-
stances of its display, with a condensed power” to speak for
the community. W. Smith, Flags Through the Ages and
Across the World 1–2, 32, 34 (1975). Little wonder that the
Continental Congress, seeking to defne a new nation, “[r]e-
solved” on June 14, 1777, “[t]hat the Flag of the . . . United
States be thirteen stripes, alternate red and white: that the
union be thirteen stars, white in a blue feld, representing a
new constellation.” 8 Journals of the Continental Congress
1774–1789, p. 464 (W. Ford ed. 1907). Today, the American
fag continues to symbolize our Nation, a constellation of 50
stars standing for the 50 States.
Other contemporary fags, both state and local, refect
their communities. Boston's fag, for instance, bears the
city's seal and motto rendered in blue and buff—the colors
of the Continental Army's Revolutionary War uniforms.
See Symbols of the City of Boston, City of Boston (July 16,
2016), https://www.boston.gov/departments/tourism-sports-
and-entertainment/symbols-city-boston (Symbols of Boston).

254 SHUR
TLEFF v. BOSTON
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Not just the content of a fag, but also its presence and
positi
on have long conveyed important messages about gov-
ernment. The early morning sight of the stars and stripes
above Fort McHenry told Francis Scott Key (and, through
his poem, he told the rest of us) that the great experiment—
the land of the free—had survived the British attack on Bal-
timore Harbor. See C. Lineberry, The Story Behind the
Star Spangled Banner, Smithsonian Magazine (Mar. 1, 2007).
No less familiar, a fag at halfstaff tells us that the govern-
ment is paying its “respect to th[e] memory” of someone who
has died. 4 U. S. C. § 7(m). (Congress has explained, across
several sections of the U. S. Code, the meaning we should
take from the “position,” “manner,” “time,” and “occasions”
of the American fag 's display. §§ 6, 7.) And the presence
of the Royal Standard fying from Windsor Castle's Round
Tower says the Queen is home. See Windsor Castle Today,
Royal Collection Trust, www.rct.uk/visit/windsor-castle/
windsor-castle-today.
The fying of a fag other than a government's own can
also convey a governmental message. A foreign fag outside
Blair House, across the street from the White House, signals
that a foreign leader is visiting and the residence has “be-
com[e] a de facto diplomatic mission of the guest's home na-
tion.” M. French, United States Protocol: The Guide to Of-
fcial Diplomatic Etiquette 298 (2010). And, according to
international custom, when fags of two or more nations are
displayed together, they cannot be fown one nation above
the other “in time of peace.” 4 U. S. C. § 7(g).
Keeping with this tradition, fags on Boston's City Hall
Plaza usually convey the city's messages. On a typical day,
the American fag, the Massachusetts fag, and the City of
Boston's fag wave from three fagpoles. Boston's fag, when
fying there at full mast, symbolizes the city. When fying
at halfstaff, it conveys a community message of sympathy
or somber remembrance. When displayed at other public
buildings, it marks the mayor's presence. See Symbols of
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Boston. The city also sometimes conveys a message by re-
placi
ng its fag with another. When Boston's mayor lost a
bet with Montreal's about whose hockey team would win a
playoff series, Boston, duty-bound in defeat, hoisted the Ca-
nadiens' banner. See Tr. of Oral Arg. 54–55.
While this history favors Boston, it is only our starting
point. The question remains whether, on the 20 or so times
a year when Boston allowed private groups to raise their
own fags, those fags, too, expressed the city's message. So
we must examine the details of this fag-fying program.
Next, then, we consider whether the public would tend to
view the speech at issue as the government's. In this case,
the circumstantial evidence does not tip the scale. On an
ordinary day, a passerby on Cambridge Street sees three
government fags representing the Nation, State, and city.
Those fags wave “in unison, side-by-side, from matching
fagpoles,” just outside “ `the entrance to Boston's seat of
government.' ” 986 F. 3d, at 88. Like the monuments in
the public park in Summum, the fags “play an important
role in defning the identity that [the] city projects to its own
residents and to the outside world.” 555 U. S., at 472. So,
like the license plates in Walker, the public seems likely to
see the fags as “ `conveying some message' ” on the govern-
ment's “ `behalf.' ” 576 U. S., at 212 (quoting Summum, 555
U. S., at 471).
But as we have said, Boston allowed its fag to be lowered
and other fags to be raised with some regularity. These
other fags were raised in connection with ceremonies at the
fagpoles' base and remained aloft during the events. Peti-
tioners say that a pedestrian glimpsing a fag other than Bos-
ton's on the third fagpole might simply look down onto the
plaza, see a group of private citizens conducting a ceremony
without the city's presence, and associate the new fag with
them, not Boston. Thus, even if the public would ordinarily
associate a fag 's message with Boston, that is not necessarily
true for the fags at issue here. Again, this evidence of the
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Opinion of the Court
public's perception does not resolve whether Boston con-
veyed
a city message with these fags.
Finally, we look at the extent to which Boston actively
controlled these fag raisings and shaped the messages the
fags sent. The answer, it seems, is not at all. And that is
the most salient feature of this case.
To be sure, Boston maintained control over an event's date
and time to avoid conficts. It maintained control over the
plaza's physical premises, presumably to avoid chaos. And
it provided a hand crank so that groups could rig and raise
their chosen fags. But it is Boston's control over the fags'
content and meaning that here is key; that type of control
wou ld i ndicate that Boston meant to convey the flags'
messages.
On this issue, Boston's record is thin. Boston says that
all (or at least most) of the 50 unique fags it approved refect
particular city-approved values or views. Flying fags asso-
ciated with other countries celebrated Bostonians' many dif-
ferent national origins; fying other fags, Boston adds, was
not “wholly unconnected” from a diversity message or “some
other day or cause the City or Commonwealth had already
endorsed.” Brief for Respondents 8, 35. That may well be
true of the Pride Flag raised annually to commemorate Bos-
ton Pride Week. See Brief for Commonwealth of Massachu-
setts et al. as Amici Curiae 25–26 (citing reports that the
then-mayor of Boston gave remarks as the Pride Flag was
raised). But it is more diffcult to discern a connection to
the city as to, say, the Metro Credit Union fag raising, a
ceremony by a local community bank.
In any event, we do not settle this dispute by counting
noses—or, rather, counting fags. That is so for several rea-
sons. For one thing, Boston told the public that it sought
“to accommodate all applicants” who wished to hold events
at Boston's “public forums,” including on City Hall Plaza.
App. to Pet. for Cert. 137a. The application form asked only
for contact information and a brief description of the event,

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257
Opinion of the Court
with proposed dates and times. The city employee who
handled
applications testifed by deposition that he had
previously “never requested to review a fag or requested
changes to a fag in connection with approval”; nor did he
even see fags before the events. Id., at 150a. The city's
practice was to approve fag raisings, without exception. It
has no record of denying a request until Shurtleff 's. Boston
acknowledges it “hadn't spent a lot of time really thinking
about” its fag-raising practices until this case. App. in
No. 20–1158 (CA1), at 140 (Rooney deposition). True to its
word, the city had nothing—no written policies or clear in-
ternal guidance—about what fags groups could fy and what
those fags would communicate.
Compare the extent of Boston's control over fag raisings
with the degree of government involvement in our most rele-
vant precedents. In Summum, we emphasized that Pleas-
ant Grove City always selected which monuments it would
place in its park (whether or not the government funded
those monuments), and it typically took ownership over
them. 555 U. S., at 472–473. In Walker, a state board
“maintain[ed] direct control” over license plate designs by
“actively” reviewing every proposal and rejecting at least a
dozen. 576 U. S., at 213. Boston has no comparable record.
The facts of this case are much closer to Matal v. Tam.
There, we held that trademarks were not government speech
because the Patent and Trademark Offce registered all man-
ner of marks and normally did not consider their viewpoint,
except occasionally to turn away marks it deemed “offen-
sive.” 582 U. S., at 233, 244. Boston's come-one-come-all
attitude—except, that is, for Camp Constitution's religious
fag—is similar.
Boston could easily have done more to make clear it
wished to speak for itself by raising fags. Other cities' fag-
fying policies support our conclusion. The City of San Jose,
California, for example, provides in writing that its “ `fag-
poles are not intended to serve as a forum for free expression
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Opinion of the Court
by the public,' ” and lists approved fags that may be fown
“
`as an expression of the City's offcial sentiments.' ” See
Brief for Commonwealth of Massachusetts et al. as Amici
Curiae 18.
All told, while the historical practice of fag fying at gov-
ernment buildings favors Boston, the city's lack of meaning-
ful involvement in the selection of fags or the crafting of
their messages leads us to classify the fag raisings as pri-
vate, not government, speech—though nothing prevents
Boston from changing its policies going forward.
III
Last, we consider whether Boston's refusal to allow Shurt-
leff and Camp Constitution to raise their fag amounted to
impermissible viewpoint discrimination.
Boston acknowledges that it denied Shurtleff 's request be-
cause it believed fying a religious fag at City Hall could
violate the Establishment Clause. And it admits this con-
cern proceeded from the premise that raising the fag would
express government speech. See Brief in Opposition 23 (ex-
plaining that “viewpoint neutrality” was “incompatible” with
Boston's view of its program). But we have rejected that
premise in the preceding pages. We must therefore con-
sider Boston's actions in light of our holding.
When a government does not speak for itself, it may not
exclude speech based on “religious viewpoint”; doing so “con-
stitutes impermissible viewpoint discrimination.” Good
News Club v. Milford Central School, 533 U. S. 98, 112
(2001). Applying that rule, we have held, for example, that
a public university may not bar student-activity funds from
reimbursing only religious groups. See Rosenberger, 515
U. S., at 830–834. Here, Boston concedes that it denied
Shurtleff 's request solely because the Christian fag he asked
to raise “promot[ed] a specifc religion.” App. to Pet. for
Cert. 155a (quoting Rooney deposition). Under our prece-
dents, and in view of our government-speech holding here,
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that refusal discriminated based on religious viewpoint and
v
iolated the Free Speech Clause.
***
For the foregoing reasons, we conclude that Boston's fag-
raising program does not express government speech. As a
result, the city's refusal to let Shurtleff and Camp Constitu-
tion fy their fag based on its religious viewpoint violated
the Free Speech Clause of the First Amendment. We re-
verse the First Circuit's contrary judgment and remand the
case for further proceedings consistent with this opinion.
It is so ordered.
[Appendix to opinion of the Court follows this page.]
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APPENDIX TO OPINION OF THE COURT
The flagpoles outside Boston City Hall fly the American flag, the Commonwealth of
Massachusetts flag, and the city flag, side by side, on an ordinary day.
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Source: Preservation Priorities, Boston Preservation Alliance (Feb. 3, 2022), https://boston-preservation.
org/news-item/preservation-priorities-letter-mayor-wu

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Alito, J., concurring in judgment
Justice Kavanaugh, concurring.
Th
is dispute arose only because of a government offcial's
mistaken understanding of the Establishment Clause. A
Boston offcial believed that the City would violate the Es-
tablishment Clause if it allowed a religious fag to briefy fy
outside of City Hall as part of the fag-raising program that
the City had opened to the public. So Boston granted re-
quests to fy a variety of secular fags, but denied a request
to fy a religious fag. As this Court has repeatedly made
clear, however, a government does not violate the Establish-
ment Clause merely because it treats religious persons, orga-
nizations, and speech equally with secular persons, organiza-
tions, and speech in public programs, benefts, facilities, and
the like. See, e. g., Zelman v. Simmons-Harris, 536 U. S.
639 (2002). On the contrary, a government violates the Con-
stitution when (as here) it excludes religious persons, organi-
zations, or speech because of religion from public programs,
benefts, facilities, and the like. See, e. g., Espinoza v. Mon-
tana Dept. of Revenue, 591 U. S. ––– (2020); Good News Club
v. Milford Central School, 533 U. S. 98 (2001); McDaniel v.
Paty, 435 U. S. 618 (1978). Under the Constitution, a gov-
ernment may not treat religious persons, religious organiza-
tions, or religious speech as second-class.
Justice Alito, with whom Justice Thomas and Justice
Gorsuch join, concurring in the judgment.
I agree with the Court's conclusion that Boston (hereafter
City) violated the First Amendment's guarantee of freedom
of speech when it rejected Camp Constitution's application
to fy what it characterized as a “Christian fag.” But I can-
not go along with the Court's decision to analyze this case in
terms of the triad of factors—history, the public's perception
of who is speaking, and the extent to which the government
has exercised control over speech—that our decision in
Walker v. Texas Div., Sons of Confederate Veterans, Inc.,
576 U. S. 200 (2015), derived from Pleasant Grove City v.
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Summum, 555 U. S. 460 (2009). See ante, at 253–258. As
the
Court now recognizes, those cases did not set forth a test
that always and everywhere applies when the government
claims that its actions are immune to First Amendment
challenge under the government-speech doctrine. And
treating those factors as a test obscures the real question in
government-speech cases: whether the government is speak-
ing instead of regulating private expression.
I
The government-speech doctrine recognizes that the Free
Speech Clause of the First Amendment “restricts govern-
ment regulation of private speech” but “does not regulate
government speech.” Summum, 555 U. S., at 467. That
doctrine presents no serious problems when the government
speaks in its own voice—for example, when an offcial gives
a speech in a representative capacity or a governmental body
issues a report. But courts must be very careful when
a government claims that speech by one or more private
speakers is actually government speech. When that occurs,
it can be diffcult to tell whether the government is using
the doctrine “as a subterfuge for favoring certain private
speakers over others based on viewpoint,” id., at 473,
and the government-speech doctrine becomes “susceptible
to dangerous misuse,” Matal v. Tam, 582 U. S. 218, 235
(2017).
In Tam, for example, the United States defended a statu-
tory provision that permitted the Patent and Trademark Of-
fce to deny federal registration to “disparag[ing]” marks, 15
U. S. C. § 1052(a), on the theory that “the registration of a
trademark converts the mark into government speech.” 582
U. S., at 239. We rejected that argument and held that be-
cause the Government's role in registration was limited to
applying a standard of assessment to marks generated by
private parties, registered marks are not government
speech. Id., at 233–236. But the Government's position
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Alito, J., concurring in judgment
had radical implications: If registration transforms trade-
marks
into government speech, the same logic would pre-
sumably hold for other speech included on systems of gov-
ernment registration. Books on the copyright registry, for
example, would count as the Government's own speech—pre-
sumably subject to editorial control. And the Government
would be free to exclude authors from copyright protection
based on their views. Id., at 238–239.
To prevent the government-speech doctrine from being
used as a cover for censorship, courts must focus on the iden-
tity of the speaker. The ultimate question is whether the
government is actually expressing its own views or the real
speaker is a private party and the government is surrepti-
tiously engaged in the “regulation of private speech.” Sum-
mum, 555 U. S., at 467. But our precedent has never at-
tempted to specify a general method for deciding that
question, and the Court goes wrong in proceeding as though
our decisions in Walker and Summum settled on anything
that might be considered a “government-speech analysis.”
Ante, at 253. In both cases, we employed a fact-bound
totality-of-the-circumstances inquiry that relied on the fac-
tors that appeared helpful in evaluating whether the speech
at issue was government or private speech. See Walker,
576 U. S., at 210–213; Summum, 555 U. S., at 470–478. We
did not set out a test to be used in all government-speech
cases, and we did not purport to defne an exhaustive list of
relevant factors. And in light of the ultimate focus of the
government-speech inquiry, each of the factors mentioned in
those cases could be relevant only insofar as it sheds light on
the identity of the speaker. When considered in isolation
from that inquiry, the factors central to Walker and Sum-
mum can lead a court astray.
Consider frst “the extent to which the government has
actively shaped or controlled the expression.” Ante, at 252.
Government control over speech is relevant to speaker iden-
tity in that speech by a private individual or group cannot
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Alito, J., concurring in judgment
constitute government speech if the government does not
attempt
to control the message. But control is also an es-
sential element of censorship. Consider this example. The
British Licensing Act of 1737, 10 Geo. II c. 28, § 1, in 17 Eng.
Stat. at Large 140 (1765), as amended by the Theatres Act
of 1843, 6 & 7 Vict. c. 68, § 2 (1843), prohibited the perform-
ance of any “interlude, tragedy, comedy, opera, play, farce,
or other entertainment” without a patent issued by the
King of England or a “License from the Lord Chamberlain
of Her Majesty's Household.” Ibid. This regime attracted
criticism precisely because it gave the Lord Chamberlain ex-
tensive “control over the nature and content,” ante, at 253,
of covered performances. One of the leading critics of the
Act—the playwright George Bernard Shaw—was denied
permission to perform several plays, including Mrs. Warren's
Profession, The Shewing-up of Blanco Posnet, and Press
Cuttings.
1
But had the Lord Chamberlain approved these
plays, would anyone seriously maintain that those plays were
thereby transmuted into the government's speech?
As this illustration shows, neither “control” nor “fnal ap-
proval authority” can in itself distinguish government speech
from censorship of private speech, and analyzing that factor
in isolation from speaker identity fattens the distinction be-
tween government speech and speech tolerated by the censor.
And it is not as though “actively” exercising control over the
“nature and content” of private expression makes a difference,
as the Court suggests, ante, at 252–253. Censorship is not
made constitutional by aggressive and direct application.
Next, turn to the history of the means of expression.
Ante, at 253. Historical practice can establish that a means
of expression “typically represent[s] government speech.”
Summum, 555 U. S., at 470 (emphasis added); Tam, 582 U. S.,
at 238. But in determining whether speech is the govern-
ment's, the real question is not whether a form of expression
1
See generally L. Hugo, Edwardian Shaw: The Writer and His Age 197–
230 (1999).
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Alito, J., concurring in judgment
is usually linked with the government but whether the
speech
at issue expresses the government's own message.
Governments can put public resources to novel uses. And
when governments allow private parties to use a resource
normally devoted to government speech to express their own
messages, the government cannot rely on historical expecta-
tions to pass off private speech as its own. Cf. Summum,
555 U. S., at 480 (explaining that even though monuments in
parks are normally government speech, that would not be true
if “a town created a monument on which all of its residents (or
all those meeting some other criterion) could place the name
of a person to be honored or some other private message”).
This case exemplifes the point. Governments have long
used fags to express government messages, so this factor
provides prima facie support for Boston's position under the
Court's mode of analysis. Ante, at 253–256. But on these
facts, the history of fags clearly cannot have any bearing on
whether the fag displays express the City's own message.
The City put the fagpoles to an unorthodox use—allowing
private parties to use the poles to express messages that
were not formulated by City offcials. Treating this factor
as signifcant in that circumstance loads the dice in favor of
the government's position for no obvious reason.
Now consider the third factor: “the public's likely per-
ception as to who (the government or a private person)
is speaking.” Ante, at 252. Our earlier government-speech
precedents recog ni zed that “ the correc t focus” of the
government-speech inquiry “is not on whether the . . . rea-
sonable viewer would identify the speech as the govern-
ment's,” Johanns v. Livestock Marketing Assn., 544 U. S.
550, 564, n. 7 (2005), and with good reason. Unless the pub-
lic is assumed to be omniscient, public perception cannot be
relevant to whether the government is speaking, as opposed
merely appearing to speak. Focusing on public perception
encourages courts to categorize private expression as gov-
ernment speech in circumstances in which the public is liable
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Alito, J., concurring in judgment
to misattribute that speech to the government. This case
once
again provides an apt illustration. As the Court
rightly notes, “[a] passerby on Cambridge Street” confronted
with a fag fanked by government fags standing just outside
the entrance of Boston's seat of government would likely con-
clude that all of those fags “conve[y] some message on the
government's behalf. ” Ante, at 255 (internal quotation
marks omitted). If that is the case, this factor supports the
exclusion of private parties from using the fagpoles even
though the government allows private parties to use the
fagpoles to express private messages, presumably because
those messages may be erroneously attributed to the govern-
ment. But there is no obvious reason why a government
should be entitled to suppress private views that might be
attributed to it by engaging in viewpoint discrimination.
The government can always disavow any messages that
might be mistakenly attributed to it.
The factors relied upon by the Court are thus an uncertain
guide to speaker identity. But beyond that, treating these
factors as a freestanding test for the existence of govern-
ment speech artifcially separates the question whether the
government is speaking from whether the government is fa-
cilitating or regulating private speech. Under the Court's
factorized approach, government speech occurs when the
government exercises a “suffcient” degree of control over
speech that occurs in a setting connected with government
speech in the eyes of history and the contemporary public,
regardless of whether the government is actually merely fa-
cilitating private speech. This approach allows govern-
ments to exploit public expectations to mask censorship.
And like any factorized analysis, this approach cannot
provide a principled way of deciding cases. The Court's
analysis here proves the point. The Court concludes that
two of the three factors—history and public perception—
favor the City. But it nonetheless holds that the fag dis-

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Alito, J., concurring in judgment
plays did not constitute government speech. Why these
fac
tors drop out of the analysis—or even do not justify a
contrary conclusion—is left unsaid. This cannot be the right
way to determine when governmental action is exempt from
the First Amendment.
II
A
I would resolve this case using a different method for de-
termining whether the government is speaking. In my
view, the minimum conditions that must be met for expres-
sion to count as “government speech” can be identifed by
considering the defnition of “government speech” and the
rationale for the government-speech doctrine. Under the
resulting view, government speech occurs if—but only if—a
government purposefully expresses a message of its own
through persons authorized to speak on its behalf, and in doing
so, does not rely on a means that abridges private speech.
Defned in literal terms, “government speech” is “speech”
spoken by the government. “Speech,” as that term is used
in our First Amendment jurisprudence, refers to expressive
activity that is “intended to be communicative” and, “in con-
text, would reasonably be understood . . . to be communica-
tive.” Clark v. Community for Creative Non-Violence, 468
U. S. 288, 294 (1984); see also Hurley v. Irish-American Gay,
Lesbian and Bisexual Group of Boston, Inc., 515 U. S.
557, 569 (1995). Our government-speech precedents have
worked with largely the same defnition. See, e. g., Sum-
mum, 555 U. S., at 472 (accepting monument for placement
in a city park “constitute[d] government speech” because the
monuments were “meant to convey and have the effect of
conveying a government message”); Walker, 576 U. S., at 214
(similar). And although this defnition of “speech” is not
fully precise, the purposeful communication of the speaker's
own message generally qualifes as “speech.”
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For “speech” to be spoken by the government, the relevant
ac
t of communication must be government action. Govern-
ments are not natural persons and can only communicate
through human agents who have been given the power to
speak for the government. When individuals charged with
speaking on behalf of the government act within the scope
of their power to do so, they “are not speaking as citizens for
First Amendment purposes.” Garcetti v. Ceballos, 547 U. S.
410, 421 (2006). And because “speech” requires the pur-
poseful communication of the speaker's own message, the
message expressed must have been formulated by a person
with the power to determine what messages the government
will communicate. In short, the government must “se[t] the
overall message to be communicated” through offcial action.
Johanns, 544 U. S., at 562.
Government speech is thus the purposeful communication
of a governmentally determined message by a person exer-
cising a power to speak for a government. But not all gov-
ernmental activity that qualifes as “government speech” in
this literal and factual sense is exempt from First Amendment
scrutiny. For although we have said that the Free Speech
Clause “has no application” when a government is “engaging
in [its] own expressive conduct,” Summum, 555 U. S., at 467,
we have also recognized that “the Free Speech Clause itself
may constrain the government's speech” under certain condi-
tions, as when a “government seeks to compel private persons
to convey the government's speech.” Walker, 576 U. S., at
208; see also Wooley v. Maynard, 430 U. S. 705 (1977); West
Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943).
That is because the government-speech doctrine is not
based on the view—which we have neither accepted nor re-
jected—that governmental entities have First Amendment
rights. See United States v. American Library Assn., Inc.,
539 U. S. 194, 210–211 (2003); Columbia Broadcasting Sys-
tem, Inc. v. Democratic National Committee, 412 U. S. 94,
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Alito, J., concurring in judgment
139, and n. 7 (1973) (Stewart, J., concurring).
2
Instead,
the
doctrine is based on the notion that governmental commu-
nication—and the exercise of control over those charged
by law with implementing a government's communicative
agenda—do not normally “restrict the activities of . . . per-
sons acting as private individuals.” Rust v. Sullivan, 500
U. S. 173, 198–199 (1991); see also Summum, 555 U. S., at 467
(“The Free Speech Clause restricts government regulation
of private speech”); Rosenberger v. Rector and Visitors of
Univ. of Va., 515 U. S. 819, 833–835 (1995). So government
speech in the literal sense is not exempt from First Amend-
ment attack if it uses a means that restricts private expres-
sion in a way that “abridges” the freedom of speech, as is the
case with compelled speech. Were it otherwise, virtually
every government action that regulates private speech would,
paradoxically, qualify as government speech unregulated by
the First Amendment. Naked censorship of a speaker based
on viewpoint, for example, might well constitute “expres-
sion” in the thin sense that it conveys the government's dis-
approval of the speaker's message. But plainly that kind of
action cannot fall beyond the reach of the First Amendment.
It follows that to establish that expression constitutes gov-
ernment speech exempt from First Amendment attack, the
government must satisfy two conditions. First, it must
show that the challenged activity constitutes government
speech in the literal sense—purposeful communication of
a governmentally determined message by a person acting
2
The text of the First Amendment also seems to exclude the possibility
that the Federal Government has a constitutional right to speak, since it
prohibits “Congress” and other federal entities and actors from “abridging
the freedom of speech.” A different analysis might be called for in a case
in which the Federal Government attempts to restrict the speech of an-
other sovereign. If the States had First Amendment rights against the
Federal Government at the time of ratifcation, it is not obvious why that
right would be eliminated by the incorporation of the speech rights of
private citizens against the States through the Fourteenth Amendment.
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within the scope of a power to speak for the government.
Second,
the government must establish it did not rely on a
means that abridges the speech of persons acting in a private
capacity. It is only then that “the Free Speech Clause has
no application.” Summum, 555 U. S., at 467.
This framework explains the conditions under which gov-
ernment communication that relies on private parties can
constitute government speech. Our precedents recognize
two ways in which a government can speak using private
assistance. First, the government can prospectively “en-
lis[t] private entities to convey its own message,” Rosen-
berger, 515 U. S., at 833, by deputizing private persons as its
agents. See Johanns, 544 U. S., at 560–562, and n. 4; Rust,
500 U. S., at 192–200. In that kind of situation, private per-
sons assume a public or quasi-public capacity that empowers
them to speak on behalf of the government. So long as this
responsibility is voluntarily assumed, speech by a private
party within the scope of his power to speak for the govern-
ment constitutes government speech.
Second, the government can “adop[t]” a medium of expres-
sion created by a private party and use it to express a gov-
ernment message. Summum, 555 U. S., at 473–474. In
that circumstance, private parties are not deputized by the
government; instead a private person generates a medium of
expression and transfers it to the government. Id., at 472–
474. For the adopted expression to qualify as the govern-
ment's, the private party must alienate control over the me-
dium of expression to the government. And government
actors must put the medium to use to intentionally express
a government message. Compare id., at 473–475 (holding
that a government adopted donated monument because it
“took ownership of that monument and put it on permanent
display in a park that it owns and manages”), with Tam, 582
U. S., at 226–227, 234–236 (no adoption occurred because gov-
ernments neither produced nor took ownership of privately
generated trademarks). Otherwise, the government is sim-
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Alito, J., concurring in judgment
ply providing a forum for private parties to submit their own
produc
tions and usual First Amendment principles apply.
And to avoid running afoul of the prohibition on compelled
speech, that alienation must be voluntary.
3
This approach also explains the circumstances in which we
have concluded that the government is not speaking. We
have repeatedly held that the government-speech doctrine
does not extend to private-party speech that is merely subsi-
dized or otherwise facilitated by the government. See, e. g.,
Legal Services Corporation v. Velazquez, 531 U. S. 533, 542
(2001); Board of Regents of Univ. of Wis. System v. South-
worth, 529 U. S. 217, 229 (2000); Rosenberger, 515 U. S., at
833–834. Facilitating speech by private persons cannot con-
stitute government speech unless the government assigns a
power to speak to those persons or appropriates the products
of their expressive activity to express its own message.
When the government's role is limited to applying a standard
of assessment to determine a speaker's eligibility for a bene-
ft, the government is regulating private speech, and or-
dinary First Amendment principles apply. Tam, 582 U. S., at
234–239.
For analogous reasons, private-party expression in any
type of forum recognized by our precedents does not consti-
3
The place of Walker within this framework warrants comment. In
that case, properly understood, the government claimed to have adopted
specialty-license-plate designs submitted by private parties and actually
did “ow[n] the designs on its license plates,” Walker v. Texas Div., Sons
of Con federate Veterans, Inc., 576 U. S. 200, 212 (2015). But it was not
obvious how designs such as “Rather Be Golfng ” could possibly express a
government message. Id., at 222 (Alito, J., dissenting). In other words,
although the private parties alienated control over the plate designs, the
government did not have any purpose to communicate, and instead al-
lowed private parties to use personal plates to communicate their own
messages. This expansive understanding of government speech by adop-
tion should be confned to government-issued IDs. As we have said,
Walker “likely marks the outer bounds of the government-speech doc-
trine.” Matal v. Tam, 582 U. S. 218, 238 (2017).
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Alito, J., concurring in judgment
tute government speech. A forum, by defnition, is a space
for
private parties to express their own views. The govern-
ment can of course speak as a participant in a forum, but
the creation of a space for private discourse does not involve
expressing a governmental message, deputizing private par-
ties to express it, or adopting a private party's contribution
as a vehicle of government speech. So when examination
of the government's “policy and practice” indicates that
the government has “intentionally open[ed] a nontraditional
forum for public discourse,” a court may immediately infer
that private-party expression in the forum is not govern-
ment speech. Cornelius v. NAACP Legal Defense & Ed.
Fund, Inc., 473 U. S. 788, 802 (1985). There is no need to
consider history, public perception, or control in the abstract.
B
Analyzed under this framework, the fag displays were
plainly private speech within a forum created by the City,
not government speech. The record attests that the City's
application materials—which were the only written form of
guidance available on the program prior to the adoption of a
written policy in 2018—characterized the fagpoles as one of
the City's “public forums.” App. to Pet. for Cert. 137a.
The application guidelines did not enumerate any criteria for
access to the fagpoles that go beyond those typical of a re-
source that has been made generally available to the public.
Id., at 137a–140a. The frst rejection of an application was
the denial of Camp Constitution's application in 2017. Id.,
at 150a–158a. Prior to then, the City never rejected any
request to raise a fag submitted by any private party. And
private speakers accounted for 78% of the fag-raising appli-
cants. See Reply Brief 8.
A program with this design cannot possibly constitute gov-
ernment speech. The City did nothing to indicate an intent
to communicate a message. Clark, 468 U. S., at 294. Nor
did it deputize private speakers or appropriate private-party
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273
Alito, J., concurring in judgment
expressive content. The fags fown refected a dizzying and
contradic
tory array of perspectives that cannot be under-
stood to express the message of a single speaker. For exam-
ple, the City allowed parties to fy the gay pride fag, App.
to Pet. for Cert. 142a, but it allowed others to fy the fag of
Ethiopia, id., at 174a, a country in which “homosexual act[s]”
are punishable by “imprisonment for not less than one year.”
The Crim. Code of Fed. Democratic Republic of Eth. 2004,
Arts. 629 and 630, Proclamation No. 414/2004. Indeed, the
City disclaimed virtually all messages expressed by charac-
terizing the fagpoles as a “public forum” and adopting access
criteria consistent with generalized public use. The City's
policy and practice thus squarely indicate an intent to open
a public forum for any private speakers who met the City's
basic criteria. The requirement of viewpoint neutrality ap-
plies to any forum of this kind. Cornelius, 473 U. S., at 802.
As the Court rightly holds, denying Shurtleff 's application
to use that forum constituted impermissible viewpoint dis-
crimination. Ante, at 258–259. The City's stated reason for
rejecting Camp Constitution's application was an unwritten
“policy and practice” of “ `refrain[ing] from fying non-secular
fags on the City Hall fagpoles.' ” App. to Pet. for Cert.
153a–154a. But as we have recognized, religion constitutes
a viewpoint, and “speech discussing otherwise permissible
subjects cannot be excluded from a limited public forum on
the ground that the subject is discussed from a religious
point of view.” Good News Club v. Milford Central School,
533 U. S. 98, 112 (2001); Rosenberger, 515 U. S., at 835.
The City's decision was grounded in a belief that “[e]stab-
lished First Amendment jurisprudence” prohibits a govern-
ment from allowing a private party to “fy a [r]eligious fag
on public property.” App. to Pet. for Cert. 154a–155a. But
“[m]ore than once,” this Court has “rejected the position that
the Establishment Clause even justifes, much less requires,
a refusal to extend free speech rights to religious speakers
who participate in broad-reaching government programs
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neutral in design.” Rosenberger, 515 U. S., at 839; see also
Go
od News Club, 533 U. S., at 112; Lamb's Chapel v. Center
Moriches Union Free School Dist., 508 U. S. 384 (1993). In-
deed, excluding religious messages from public forums that
are open to other viewpoints is a “denial of the right of
free speech” indicating “hostility to religion” that would “un-
dermine the very neutrality the Establishment Clause re-
quires.” Rosenberger, 515 U. S., at 845–846; see also Board
of Ed. of Westside Community Schools (Dist. 66) v. Mergens,
496 U. S. 226, 248 (1990) (plurality opinion).
Although developments in City policy postdating the de-
nial of Shurtleff 's application are not relevant to whether
that act constituted a First Amendment violation, it should
be emphasized that the City's adoption of a written policy in
October 2018 did not convert the fag displays into govern-
ment speech. The policy's principal provision specifed that
the City will not “display fags deemed to be inappropriate
or offensive in nature or those supporting discrimination,
prejudice, or religious” viewpoints. App. in No. 20–1158
(CA1), p. 570 (App).
4
That provision did not identify a mes-
sage the City intended to express; it simply codifed the
City's prior exclusion of speakers expressing a “religious
4
The policy included six other rules specifying that: (1) fag raisings
must occur on “a normal business work day, generally between the hours
of 10:00 am and 3:00 pm”; (2) fag raisings must be open to the public and
“[g]uests must adhere to the City of Boston policy not to discriminate on
the basis of sex, race, religion, etc.”; (3) guests must deliver the “guest
fag ” to City personnel before the raising and retrieve it after; (4) events
must be consistent with the City's “sustainability” policy; (5) fags may be
lowered to comply with the U. S. Flag Code; and (6) fags will normally be
fown for 24 hours or fewer. App. 570. These criteria do not suggest
purposeful communication of a government message. The policy also re-
served “sole and complete discretion” to refuse to fy any fag. Id., at
569. But this reservation unbridled discretionary control over access to a
government-owned medium of expression cannot establish that a speaker
permitted to speak through the medium is speaking for the government.
Instead, such discretionary authority is a hallmark of a standardless sys-
tem of censorship.
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275
Alito, J., concurring in judgment
viewpoint” and extended it to messages deemed “offensive,”
d
espite the “ bedrock First Amendment pr inciple” that
“[s]peech may not be banned on the ground that it expresses
ideas that offend.” Tam, 582 U. S., at 223.
In briefng before this Court, counsel for the City argued
that despite all appearances to the contrary, the City actually
did intend to express a message through the fag-raising pro-
gram: The City's support for “the diverse national heritage
of the City's population.” Brief for Respondents 19. All
other fag raisings, the City claims, occurred “in connection
with some publicly designated date of observance.” Ibid.
This argument is a transparent attempt to reverse engineer
a governmental message from facts about the fag raisings
that occurred. It is true that many of the fag raisings from
2007 to 2015 celebrated nationalities. App. to Pet. for Cert.
173a–187a. But these events were conducted by private or-
ganizations to express their own support for the relevant
national communities. Neither the City's application guid-
ance nor the 2018 written policy singled out a connection
with a nationality commemoration as a condition of access to
the fagpoles. The City never cited this purported require-
ment in its rejection of the applications it denied. And the
City approved fags that had nothing to do with nationality
or offcial holidays, such as the “Metro Credit Union Flag
Raising ” mentioned by the Court.
Even if the City had reserved the fagpoles for nationality
commemorations and offcial holidays, that would only mean
that the City had reserved the fagpoles “for certain groups
or for the discussion of certain topics” and created a nonpub-
lic forum, not that it had engaged in government speech. Ro-
senberger, 515 U. S., at 829; see also Perry Ed. Assn. v. Perry
Local Educators' Assn., 460 U. S. 37, 49 (1983) (“Implicit in
the concept of the nonpublic forum is the right to make dis-
tinctions in access on the basis of subject matter and speaker
identity”). Had the City restricted use of the fagpoles to
these subject matters, it could have relied on the forum's
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topical limitations to deny applications to host events. But
it
could not have employed viewpoint-discriminatory criteria
to bar otherwise-eligible speakers from expressing their own
views on those subjects.
On this record, however, the only viable inference is that
the City had no policy restricting access to the forum apart
from the modest access conditions articulated in the applica-
tion materials. Having created a forum with those charac-
teristics, the City could not reject Shurtleff 's application on
account of the religious viewpoint he intended to express.
For that reason, I agree with the Court's ultimate conclusion
and concur in the judgment.
Justice Gorsuch, with whom Justice Thomas joins,
concurring in the judgment.
The real problem in this case doesn't stem from Boston's
mistake about the scope of the government speech doctrine
or its error in applying our public forum precedents. The
trouble here runs deeper than that. Boston candidly admits
that it refused to fy the petitioners' fag while allowing a
secular group to fy a strikingly similar banner. And the
city admits it did so for one reason and one reason only: It
thought displaying the petitioners' fag would violate “ `the
[C]onstitution's [E]stablishment [C]lause.' ” App. to Pet. for
Cert. 157a; see also id., at 153a–154a. That decision led di-
rectly to this lawsuit, all the years of litigation that followed,
and the city's loss today. Not a single Member of the Court
seeks to defend Boston's view that a municipal policy allow-
ing all groups to fy their fags, secular and religious alike,
would offend the Establishment Clause.
How did the city get it so wrong? To be fair, at least
some of the blame belongs here and traces back to Lemon v.
Kurtzman, 403 U. S. 602 (1971). Issued during a “ `bygone
era' ” when this Court took a more freewheeling approach to
interpreting legal texts, Food Marketing Institute v. Argus
Leader Media, 588 U. S. –––, ––– (2019), Lemon sought

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277
Gorsuch, J., concurring in judgment
to devise a one-size-fts-all test for resolving Establish-
ment
Clause disputes. That project bypassed any inquiry
into the Clause's original meaning. It ignored longstanding
precedents. And instead of bringing clarity to the area,
Lemon produced only chaos. In time, this Court came to
recognize these problems, abandoned Lemon, and returned
to a more humble jurisprudence centered on the Constitu-
tion's original meaning. Yet in this case, the city chose to
follow Lemon anyway. It proved a costly decision, and Bos-
ton's travails supply a cautionary tale for other localities and
lower courts.
*
To see how all this unfolded, start with Lemon itself.
Lemon held out the promise that any Establishment Clause
dispute could be resolved by following a neat checklist fo-
cused on three questions: (1) Did the government have a sec-
ular purpose in its challenged action? (2) Does the effect of
that action advance or inhibit religion? (3) Will the govern-
ment action “excessive[ly] . . . entangl[e]” church and state?
403 U. S., at 612–613 (internal quotation marks omitted).
But from the start, this seemingly simple test produced more
questions than answers. How much religion-promoting pur-
pose is too much? Are laws that serve both religious and
secular purposes problematic? How much of a religion-
advancing effect is tolerable? What does “excessive entan-
glement” even mean, and what (if anything) does it add to
the analysis? Putting it all together, too, what is a court to
do when Lemon's three inquiries point in conficting direc-
tions? More than 50 years later, the answers to all these
questions remain unknown.
The only sure thing Lemon yielded was new business for
lawyers and judges. Before Lemon, this Court had never
held a fag or other similar public display to constitute an
unconstitutional “establishment” of religion. See Congres-
sional Research Service, C. Brougher, Public Display of the
Ten Commandments and Other Religious Symbols 1–2 (2011)
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Gorsuch, J., concurring in judgment
(Brougher); M. McConnell, No More (Old) Symbol Cases,
2019
Cato Sup. Ct. Rev. 91 (2019) (Symbol Cases). After
Lemon, cases challenging public displays under the Estab-
lishment Clause came fast and furious. And just like the
test itself, the results proved a garble. May a State or local
government display a Christmas nativity scene? Some
courts said yes, others no.
1
How about a menorah? Again,
the answers ran both ways.
2
What about a city seal that
features a cross? Good luck.
3
If anything, the confusion grew with time. In the years
following Lemon, this Court modifed its “effects” test by
requiring lower courts to ask whether a “reasonable ob-
server” would consider the government's challenged action
to be an “endorsement” of religion. See, e. g., County of Al-
legheny v. American Civil Liberties Union, Greater Pitts-
burgh Chapter, 492 U. S. 573, 593 (1989); id., at 630 (O'Con-
nor, J., concurring in part and concurring in judgment). But
rather than fx Lemon's problems, this new gloss com-
pounded them. Some argued that any reasonable observer
worthy of the name would consider all the relevant facts and
law, just as a judge or jury must. See Capitol Square Re-
view and Advisory Bd. v. Pinette, 515 U. S. 753, 778–781
(1995) (O'Connor, J., concurring in part). Others suggested
that a reasonable observer could make mistakes about the
law or fail to consider all the facts. See, e. g., American
Atheists, Inc. v. Duncan, 616 F. 3d 1145, 1160–1161 (CA10
1
Compare Lynch v. Donnelly, 465 U. S. 668, 671–672 (1984) (yes), and
American Civil Liberties Union of Ky. v. Wilkinson, 895 F. 2d 1098,
1099–1100, 1104 (CA6 1990) (yes), with County of Allegheny v. American
Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 578–579
(1989) (no), and Smith v. County of Albemarle, 895 F. 2d 953, 955, 958–960
(CA4 1990) (no).
2
Compare Allegheny, 492 U. S., at 578–581 (yes), and Skoros v. New
York, 437 F. 3d 1, 3–4 (CA2 2006) (yes), with Kaplan v. Burlington, 891
F. 2d 1024, 1025–1026, 1030–1031 (CA2 1989) (no).
3
Compare Murray v. Austin, 947 F. 2d 147, 149 (CA5 1991) (yes), with
Harris v. Zion, 927 F. 2d 1401, 1402 (CA7 1991) (no).

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Gorsuch, J., concurring in judgment
2010). And that suggestion only raised even more ques-
ti
ons. Just how mistake-prone might an observer be and
still qualify as reasonable? On what authority may courts
exercise the awesome power of judicial review to declare
a duly enacted law unconstitutional thanks only to (admit-
ted) errors about the relevant facts or law? See American
Atheists, Inc. v. Davenport, 637 F. 3d 1095, 1108–1110 (CA10
2010) (Gorsuch, J., dissenting from denial of rehearing en
banc).
Ultimately, Lemon devolved into a kind of children's game.
Start with a Christmas scene, a menorah, or a fag. Then
pick your own “reasonable observer” avatar. In this game,
the avatar's default settings are lazy, uninformed about his-
tory, and not particularly inclined to legal research. His de-
fault mood is irritable. To play, expose your avatar to the
display and ask for his reaction. How does he feel about
it? Mind you: Don't ask him whether the proposed display
actually amounts to an establishment of religion. Just ask
him if he feels it “endorses” religion. If so, game over.
Faced with such a malleable test, risk-averse local offcials
found themselves in an ironic bind. To avoid Establishment
Clause liability, they sometimes felt they had to discriminate
against religious speech and suppress religious exercises.
But those actions, in turn, only invited liability under other
provisions of the First Amendment. The hard truth is,
Lemon's abstract and ahistoric test put “[p]olicymakers . . .
in a vise between the Establishment Clause on one side and
the Free Speech and Free Exercise Clauses on the other.”
Pinette, 515 U. S., at 767–768 (plurality opinion).
Our case illustrates the problem. The fags of many na-
tions bear religious symbols. So do the fags of various pri-
vate groups. Historically, Boston has allowed them all.
The city has even fown a fag with a cross nearly identical
in size to the one on petitioners' fag. It was a banner pre-
sented by a secular group to commemorate the Battle of
Bunker Hill. See Appendix, in fra (photographs). Yet
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when the petitioners offered their fag, the city finched.
P
erhaps it worried: Would the assigned judge's imagined
“reasonable observer” bother to learn about its generous pol-
icy for secular groups? Would this observer take the trou-
ble to consult the long tradition in this country allowing com-
parable displays? Or would he turn out to be an uninformed
passerby offended by the seeming incongruity of a new fag
fying beside those of the city, State, and Nation? Who
could tell. Better to err on the safe side and reject the peti-
tioners' fag. As it turned out, though, that route only in-
vited years of litigation and a unanimous adverse decision
because no government may discriminate against religious
speech in a public forum. To avoid a spurious First Amend-
ment problem, Boston wound up inviting a real one. Call it
a Lemon trade.
4
*
While it is easy to see how Lemon led to a strange world in
which local governments have sometimes violated the First
Amendment in the name of protecting it, less clear is why
4
It seems possible, too, that these spurious Establishment Clause con-
cerns embolden government offcials to treat religion with hostility even
when they don't rely on Lemon by name. Sometimes colleges seek to
prevent students from engaging in religious speech, labeling expressions
of faith “fghting words.” See Uzuegbunam v. Preczewski, 592 U. S. –––,
––– – ––– (2021). Certain public transit systems that sell advertising
space on trains and buses ban religious messages. See Archdiocese of
Washington v. Washington Metropolitan Area Transit Authority, 589
U. S. –––, ––– – ––– (2020) (Gorsuch, J., respecting denial of certiorari);
Northeastern Pa. Freethought Soc. v. County of Lackawanna Transit
Sys., 938 F. 3d 424, 428–431 (CA3 2019). And some governments seek to
exclude religious groups from using public facilities or designations avail-
able to others. See InterVarsity Christian Fellowship/USA v. Univer-
sity of Iowa, 5 F. 4th 855, 860–862 (CA8 2021); Bronx Household of
Faith v. Board of Ed., 750 F. 3d 184, 192 (CA2 2014). All of these trades
resu lted i n less First Amendment protec ti on and more needless
litigation.
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Gorsuch, J., concurring in judgment
this state of affairs still persists. Lemon has long since been
exposed
as an anomaly and a mistake.
From the birth of modern Establishment Clause litigation
in Everson v. Board of Ed. of Ewing, this Court looked pri-
marily to historical practices and analogues to guide its anal-
ysis. 330 U. S. 1, 9–15 (1947). So, for example, while the
dissent in Everson disagreed with some of the majority's
conclusions about what qualifes as an establishment of reli-
gion, it readily agreed that “[n]o provision of the Constitution
is more closely tied to or given content by its generating
history than the religious clause of the First Amendment.”
Id., at 33–49 (Rutledge, J., dissenting). This approach ft,
too, with this Court's usual course in other areas. Often, we
have looked to early and long-continued historical practices
as evidence of the Constitution's meaning at the time of its
adoption.
5
And, in the years following Everson, the Court
followed this same path when interpreting the Establish-
ment Clause. Agree or disagree with the conclusions in
these cases, there can be little doubt that the Court ap-
proached them in large part using history as its guide.
6
5
See, e. g., McDonald v. Chicago, 561 U. S. 742, 767–770 (2010); Giles v.
California, 554 U. S. 353, 358 (2008); see also The Pocket Veto Case, 279
U. S. 655, 689 (1929).
6
See, e. g., Walz v. Tax Comm'n of City of New York, 397 U. S. 664, 680
(1970) (upholding tax exemptions for churches because they were sup-
ported by “more than a century of our history and uninterrupted prac-
tice”); School Dist. of Abington Township v. Schempp, 374 U. S. 203, 294
(1963) (Brennan, J., concurring) (“[T]he line we must draw between the
permissible and the impermissible is one which accords with history and
faithfully refects the understanding of the Founding Fathers”); McGowan
v. Maryland, 366 U. S. 420, 437–440 (1961) (assessing “the place of Sunday
Closing Laws in the First Amendment's history”); Torcaso v. Watkins, 367
U. S. 488, 490 (1961) (concluding that religious-test oaths were one of the
elements of “the formal or practical” religious establishments that “many
of the early colonists left Europe and came here hoping to” avoid). Jus-
tice Thomas has raised important questions about this Court's incorpora-
tion of the Establishment Clause against the States in these cases. But

282 SHUR
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Lemon interrupted this long line of precedents. It of-
fered
no plausible reason for ignoring their teachings. And,
as we have seen, the ahistoric alternative it offered quickly
proved both unworkable in practice and unsound in its re-
sults. Nor is it as if Lemon vanquished the feld even during
its heyday. Often, this Court continued to look to history to
resolve certain Establishment Clause disputes outside the
context of religious displays.
7
And several early decisions
applying Lemon were themselves rapidly overruled in part
or in whole.
8
All of which in time led Justice after Justice
to conclude that Lemon was “fawed in its fundamentals,”
“unworkable in practice,” and “inconsistent with our history
and our precedents.” County of Allegheny, 492 U. S., at 655,
669 (Kennedy, J., concurring in judgment in part and dissent-
ing in part).
9
“[e]ven assuming ” incorporation, the Clause “would only protect against
an `establishment' of religion as understood at the founding.” Espinoza
v. Montana Dept. of Revenue, 591 U. S. –––, ––– (2020) (Thomas, J.,
concurring).
7
See, e. g., Marsh v. Chambers, 463 U. S. 783, 786 (1983) (surveying his-
tory to determine that “[f]rom colonial times through the founding of the
Republic and ever since, the practice of legislative prayer has coexisted
with the principles of disestablishment and religious freedom”).
8
See, e. g., Agostini v. Felton, 521 U. S. 203, 236 (1997) (overruling
School Dist. of Grand Rapids v. Ball, 473 U. S. 373 (1985), and Aguilar v.
Felton, 473 U. S. 402 (1985)); Mitchell v. Helms, 530 U. S. 793, 835 (2000)
(plurality opinion) (overruling Wolman v. Walter, 433 U. S. 229 (1977), and
Meek v. Pittenger, 421 U. S. 349 (1975)).
9
See also, e. g., Salazar v. Buono, 559 U. S. 700, 720–721 (2010) (plurality
opinion of Kennedy, J., joined in full by Roberts, C. J., and in part by
Alito, J.); Van Orden v. Perry, 545 U. S. 677, 699–700 (2005) (Breyer, J.,
concurring) (noting “Lemon's checkered career in the decisional law of this
Court” (internal quotation marks omitted)); id., at 692–693 (Thomas, J.,
concurring) (“This case would be easy if the Court were willing to abandon
the inconsistent guideposts it has adopted for addressing Establishment
Clause challenges”); McCreary County v. American Civil Liberties Union
of Ky., 545 U. S. 844, 890 (2005) (Scalia, J., joined in full by Rehnquist, C. J.,
and Thomas, J., and in part by Kennedy, J., dissenting) (“[A] majority of
the Justices on the current Court . . . have, in separate opinions, repudi-
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Recognizing Lemon's faws, this Court has not applied its
test
for nearly two decades. In Town of Greece v. Galloway,
this Court declined an invitation to use the Lemon test. See
572 U. S. 565, 577 (2014); Brief for Respondents in Town of
Greece v. Galloway, O. T. 2013, No. 12–696, pp. 58–60. In-
stead, the Court explained that the primary question in
Establishment Clause cases is whether the government's
conduct “accords with history and faithfully refects the un-
derstanding of the Founding Fathers.” 572 U. S., at 577 (in-
ternal quotation marks omitted). The Court observed that
this form of analysis represents the rule rather than “an
exception” within the “Court's Establishment Clause ju-
risprudence.” Id., at 575–577 (internal quotation marks
omitted).
In American Legion v. American Humanist Associa-
tion we underscored the message. 588 U. S. –––, ––– (2019)
(plurality opinion). Again we expressly refused to apply
Lemon, this time in a challenge to a public display—the very
kind of dispute Lemon's test ushered into existence and
where it once held sway. 588 U. S., at ––– – –––. Again we
explained that “[i]f the Lemon Court thought that its test
would provide a framework for all future Establishment
Clause decisions, its expectation has not been met.”
10
Id.,
at –––. And again we stressed that the right place to look
ated the brain-spun `Lemon test' ”); Board of Ed. of Kiryas Joel Village
School Dist. v. Grumet, 512 U. S. 687, 720 (1994) (O'Connor, J., concurring
in part and concurring in judgment); Committee for Public Ed. and Reli-
gious Liberty v. Regan, 444 U. S. 646, 671 (1980) (Stevens, J., dissenting)
(disparaging “the sisyphean task of trying to patch together the `blurred,
indistinct, and variable barrier' described in Lemon”).
10
See also American Legion, 588 U. S., at ––– (Thomas, J., concurring
in judgment) (“[B]ecause the Lemon test is not good law, we ought to say
so”); id., at ––– (Gorsuch, J., concurring in judgment) (“Lemon was a
misadventure. It sought a `grand unifed theory' of the Establishment
Clause but left us only a mess”); id., at ––– (Kavanaugh, J., concurring)
(“As this case again demonstrates, this Court no longer applies the old
test articulated in Lemon”).
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for guidance lies in “ ` “historical practices and understand-
i
ngs.” ' ” Id., at ––– (quoting Town of Greece, 572 U. S., at
576).
*
With all these messages directing and redirecting the in-
quiry to original meaning as illuminated by history, why did
Boston still follow Lemon in this case? Why do other locali-
ties and lower courts sometimes do the same thing, allowing
Lemon even now to “si[t] up in its grave and shuff[e]
abroad”? Lamb's Chapel v. Center Moriches Union Free
School Dist., 508 U. S. 384, 398 (1993) (Scalia, J., concurring
in judgment). There may be other contributing factors, but
let me address two.
First, it's hard not to wonder whether some simply prefer
the policy outcomes Lemon can be manipulated to produce.
Just dial down your hypothetical observer's concern with facts
and history, dial up his inclination to offense, and the test is
guaranteed to spit out results more hostile to religion than
anything a careful inquiry into the original understanding of
the Constitution could sustain. Lemon may promote an unse-
rious, results-oriented approach to constitutional interpreta-
tion. But for some, that may be more a virtue than a vice.
There is more than a little in the record before us to sug-
gest this line of thinking. As city offcials tell it, Boston did
not want to “ `display fags deemed to be inappropriate or
offensive in nature or those supporting discrimination, preju-
dice, or religious movements.' ” App. to Pet. for Cert. 160a.
Instead, the city wanted to celebrate only “a particular kind
of diversity.” Tr. of Oral Arg. 85–86. And if your policy
goal is to lump in religious speech with fghting words and
obscenity, if it is to celebrate only a “particular” type of di-
versity consistent with popular ideology, the First Amend-
ment is not exactly your friend. Dragging Lemon from its
grave may be your only chance.
To the extent this is why some still invoke Lemon today,
it refects poorly on us all. Through history, the suppression
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285
Gorsuch, J., concurring in judgment
of unpopular religious speech and exercise has been among
the
favorite tools of petty tyrants. See Pinette, 515 U. S.,
at 760; Feldman v. United States, 322 U. S. 487, 501 (1944)
(Black, J., dissenting). Our forebears resolved that this Na-
tion would be different. Here, they resolved, each individ-
ual would enjoy the right to make sense of his relationship
with the divine, speak freely about man's place in creation,
and have his religious practices treated with respect. See
West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642
(1943). The day governments in this country forage for
ways to abandon these foundational promises is a dark day
for the cause of individual freedom.
Besides, even for those whose policy ambitions run in this
direction, invoking Lemon is a myopic tactic. For as long
as the First Amendment means anything, government poli-
cies that discriminate against religious speech and exercise
will only invite litigation and result in losses like Boston's.
Today's case is just one more in a long line of reminders
about the costs associated with governmental efforts to dis-
criminate against disfavored religious speakers. See Good
News Club v. Milford Central School, 533 U. S. 98, 120
(2001); Lamb's Chapel, 508 U. S., at 392–397; Rosenberger v.
Rector and Visitors of Univ. of Va., 515 U. S. 819, 823–824,
845–846 (1995).
Second, it seems that Lemon may occasionally shuffe from
its grave for another and more prosaic reason. By demand-
ing a careful examination of the Constitution's original mean-
ing, a proper application of the Establishment Clause no
doubt requires serious work and can pose its challenges.
Lemon's abstract three-part test may seem a simpler and
tempting alternative to busy local offcials and lower courts.
But if this is part of the problem, it isn't without at least a par-
tial remedy. For our constitutional history contains some
helpful hallmarks that localities and lower courts can rely on.
Beyond a formal declaration that a religious denomination
was in fact the established church, it seems that founding-
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era religious establishments often bore certain other telling
traits.
See M. McConnell, Establishment and Disestablish-
ment at the Founding, Part I: Establishment of Religion,
44 Wm. & Mary L. Rev. 2105, 2110–2112, 2131 (2003) (Es-
tablishment and Disestablishment). First, the government
exerted control over the doctrine and personnel of the estab-
lished church. Second, the government mandated attend-
ance in the established church and punished people for failing
to participate. Third, the government punished dissenting
churches and i ndiv idua ls for their rel ig i ous exercise.
Fourth, the government restricted political participation by
dissenters. Fifth, the government provided fnancial sup-
port for the established church, often in a way that preferred
the established denomination over other churches. And
sixth, the government used the established church to carry
out certain civil functions, often by giving the established
church a monopoly over a specifc function. See id., at 2131–
2181. Most of these hallmarks refect forms of “coerc[ion]”
regarding “religion or its exercise.” Lee v. Weisman, 505
U. S. 577, 587 (1992); id., at 640 (Scalia, J., dissenting); Van
Orden, 545 U. S., at 693 (Thomas, J., concurring).
These traditional hallmarks help explain many of this
Court's Establishment Clause cases, too. This Court, for
example, has held unlawful practices that restrict political
participation by dissenters, including rules requiring public
offcials to proclaim a belief in God. See Torcaso v. Watkins,
367 U. S. 488, 490 (1961). It has checked government efforts
to give churches monopolistic control over civil functions.
See Larkin v. Grendel's Den, Inc., 459 U. S. 116, 127 (1982).
At the same time, it has upheld nondiscriminatory public f-
nancial support for religious institutions alongside other
entities. See Espinoza v. Montana Dept. of Revenue, 591
U. S. –––, ––– – ––– (2020); Trinity Lutheran Church of Co-
lumbia, Inc. v. Comer, 582 U. S. 449, 466–467 (2017); Zelman
v. Simmons-Harris, 536 U. S. 639, 662–663 (2002). The
thread running through these cases derives directly from the
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Gorsuch, J., concurring in judgment
historical hallmarks of an establishment of religion—gov-
e
rnment control over relig ion offends the Constitution,
but treating a church on par with secular entities and other
churches does not. See Establishment and Disestablish-
ment 2205–2208.
These historical hallmarks also help explain the result in
today's case and provide helpful guidance for those faced
with future disputes like it. As a close look at these hall-
marks and our history reveals, “[n]o one at the time of the
founding is recorded as arguing that the use of religious sym-
bols in public contexts was a form of religious establish-
ment.” Symbol Cases 107. For most of its existence, this
country had an “unbroken history of offcial acknowledgment
by all three branches of government of the role of religion
in American life.” Lynch, 465 U. S., at 674.
11
In fact and
as we have seen, it appears that, until Lemon, this Court had
never held the display of a religious symbol to constitute an
establishment of religion. See Brougher 1–2; Symbol Cases
91. The simple truth is that no historically sensitive under-
standing of the Establishment Clause can be reconciled with
a rule requiring governments to “roa[m] the land, tearing
down monuments with religious symbolism and scrubbing
away any reference to the divine.” American Legion, 588
11
So, for example, when designing a seal for the new Nation in 1776,
Benjamin Franklin and Thomas Jefferson proposed a familiar Biblical
scene—Moses leading the Israelites across the Red Sea. J. Hutson, Reli-
gion and the Founding of the American Republic 50–51 (1998) (Hutson).
The seal ultimately adopted by Congress in 1782 features “the Eye of
Providence” surrounded by “Glory” above the motto Annuit Coeptis—“He
[God] has favored our undertakings.” Dept. of State, Bureau of Pub. Af-
fairs, The Great Seal of the United States 4–6 (July 2003). This Court
has recognized that President Washington's 1789 Thanksgiving Day Proc-
lamation referred to “a day of public thanksgiving and prayer” and the
role of a “Supreme Being ” in “the foundations and successes of our young
Nation.” Van Orden, 545 U. S., at 686–687. And President Jefferson al-
lowed various religious groups to use the Capitol for weekly worship serv-
ices. Hutson 84–94.
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U. S., at –––. Our Constitution was not designed to erase
rel
igion from American life; it was designed to ensure “re-
spect and tolerance.” Id., at –––.
*
To justify a policy that discriminated against religion, Bos-
ton sought to drag Lemon once more from its grave. It was
a strategy as risky as it was unsound. Lemon ignored the
original meaning of the Establishment Clause, it disregarded
mountains of precedent, and it substituted a serious constitu-
tional inquiry with a guessing game. This Court long ago
interred Lemon, and it is past time for local offcials and
lower courts to let it lie.
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APPENDIX TO OPINION OF GORSUCH, J.
The Bunker Hill Flag The Camp Constitution Flag
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Source: App. to Pet. for Cert. 132a
Source: App. to Pet. for Cert. 146a

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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 274, line 15, “to” is deleted