142 S.Ct. 1987

Supreme Court of the United States.

David CARSON, AS parent and NEXT FRIEND OF O. C., et al., Petitioners

v.

1. Pender MAKIN

No. 20-1088

|

Argued December 8, 2021

|

Decided June 21, 2022

CHIEF JUSTICE ROBERTS delivered the opinion of the Court.

*1993 Maine has enacted a program of tuition assistance for parents who live in school districts that do not operate a secondary school of their own. Under the program, parents designate the secondary school they would like their child to attend—public or private—and the school district transmits payments to that school to help defray the costs of tuition. Most private schools are eligible to receive the payments, so long as they are “nonsectarian.” The question presented is whether this restriction violates the Free Exercise Clause of the First Amendment.

I

A

Maine’s Constitution provides that the State’s legislature shall “require ... the several towns to make suitable provision, at their own expense, for the support and maintenance of public schools.” Me. Const., Art. VIII, pt. 1, § 1. In accordance with that command, the legislature has required that every school-age child in Maine “shall be provided an opportunity to receive the benefits of a free public education,” [citation omitted] and that the required schools be operated by “the legislative and governing bodies of local school administrative units,” [citation omitted]. But Maine is the most rural State in the Union, and for many school districts the realities of remote geography and low population density make those commands difficult to heed. Indeed, of Maine’s 260 school administrative units (SAUs), fewer than half operate a public secondary school of their own. App. 4, 70, 73.

Maine has sought to deal with this problem in part by creating a program of tuition assistance for families that reside in such areas. Under that program, if an SAU neither operates its own public secondary school nor contracts with a particular public or private school for the education of its school-age children, the SAU must “pay the tuition ... at the public school or the approved private school of the parent’s choice at which the student is accepted.” [citation omitted] Parents who wish to take advantage of this benefit first select the school they wish their child to attend….If they select a private school that has been “approved” by the Maine Department of Education, the parents’ SAU “shall pay the tuition” at the chosen school up to a specified maximum rate. [citation omitted]

To be “approved” to receive these payments, a private school must meet certain basic requirements under Maine’s compulsory education law…The school must either be “[c]urrently accredited by a New England association of schools and colleges” or separately “approv[ed] for attendance purposes” by the Department…Schools seeking approval from the Department must meet specified curricular requirements, such as using English as the language of instruction, offering a course in “Maine history, including the Constitution of Maine ... and Maine’s cultural and ethnic heritage,” and maintaining a student-teacher ratio of not more than 30 to 1. [citation omitted]

*1994 The program imposes no geographic limitation: Parents may direct tuition payments to schools inside or outside the State, or even in foreign countries. [citation omitted] In schools that qualify for the program because they are accredited, teachers need not be certified by the State,…and Maine’s curricular requirements do not apply…Single-sex schools are eligible. [citation omitted]

Prior to 1981, parents could also direct the tuition assistance payments to religious schools. Indeed, in the 1979–1980 school year, over 200 Maine students opted to attend such schools through the tuition assistance program. App. 72. In 1981, however, Maine imposed a new requirement that any school receiving tuition assistance payments must be “a nonsectarian school in accordance with the First Amendment of the United States Constitution.” [citation omitted] That provision was enacted in response to an opinion by the Maine attorney general taking the position that public funding of private religious schools violated the Establishment Clause of the First Amendment. We subsequently held, however, that a benefit program under which private citizens “direct government aid to religious schools wholly as a result of their own genuine and independent private choice” does not offend the Establishment Clause. [citation omitted] Following our decision in Zelman, the Maine Legislature considered a proposed bill to repeal the “nonsectarian” requirement, but rejected it. App. 100, 108.

The “nonsectarian” requirement for participation in Maine’s tuition assistance program remains in effect today. The Department has stated that, in administering this requirement, it “considers a sectarian school to be one that is associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.” [citation omitted] “The Department’s focus is on what the school teaches through its curriculum and related activities, and how the material is presented.” …“[A]ffiliation or association with a church or religious institution is one potential indicator of a sectarian school,” but “it is not dispositive.”

B

This case concerns two families that live in SAUs that neither maintain their own secondary schools nor contract with any nearby secondary school. App. 70, 71. Petitioners David and Amy Carson reside in Glenburn, Maine. Id., at 74. When this litigation commenced, the Carsons’ daughter attended high school at Bangor Christian Schools (BCS), which was founded in 1970 as a ministry of Bangor Baptist Church. Id., at 74, 80. The Carsons sent their daughter to BCS because of the school’s high academic standards and because the school’s Christian worldview aligns with their sincerely held religious beliefs. Id., at 74. Given that BCS is a “sectarian” school that cannot qualify for tuition assistance payments under Maine’s program, id., at 80, the Carsons paid the tuition for their daughter to attend BCS themselves, id., at 74.

Petitioners Troy and Angela Nelson live in Palermo, Maine. Id., at 78. When this litigation commenced, the Nelsons’ daughter attended high school at Erskine Academy, a secular private school, and their son attended middle school at Temple Academy, a “sectarian” school affiliated with *1995 Centerpoint Community Church. Id., at 78, 90, 91. The Nelsons sent their son to Temple Academy because they believed it offered him a high-quality education that aligned with their sincerely held religious beliefs. Id., at 78. While they wished to send their daughter to Temple Academy too, they could not afford to pay the cost of the Academy’s tuition for both of their children. Id., at 79.

BCS and Temple Academy are both accredited by the New England Association of Schools and Colleges (NEASC), and the Department considers each school a “private school approved for attendance purposes” under the State’s compulsory attendance requirement. Id., at 80, 90. Yet because neither school qualifies as “nonsectarian,” neither is eligible to receive tuition payments under Maine’s tuition assistance program. Id., at 80, 90. Absent the “nonsectarian” requirement, the Carsons and the Nelsons would have asked their respective SAUs to pay the tuition to send their children to BCS and Temple Academy, respectively. Id., at 79.

In 2018, petitioners brought suit against the commissioner of the Maine Department of Education. Id., at 11–12. They alleged that the “nonsectarian” requirement of Maine’s tuition assistance program violated [inter alia] the Free Exercise Clause and the Establishment Clause of the First Amendmen…Their complaint sought declaratory and injunctive relief against enforcement of the requirement. Id., at 31–32. The parties filed cross-motions for summary judgment on a stipulated record. 401 F.Supp.3d 207, 208 (D.Me. 2019). Applying Circuit precedent that had previously upheld the “nonsectarian” requirement against challenge, see Eulitt v. Maine Dept. of Ed., 386 F.3d 344 (CA1 2004), the District Court rejected petitioners’ constitutional claims and granted judgment to the commissioner. 401 F.Supp.3d at 209–212.

While petitioners’ appeal to the First Circuit was pending, this Court decided Espinoza v. Montana Department of Revenue, 591 U. S. ––––, 140 S.Ct. 2246, 207 L.Ed.2d 679 (2020). Espinoza held that a provision of the Montana Constitution barring government aid to any school “controlled in whole or in part by any church, sect, or denomination,” Art. X, § 6(1), violated the Free Exercise Clause by prohibiting families from using otherwise available scholarship funds at the religious schools of their choosing. The First Circuit recognized that, in light of Espinoza, its prior precedent upholding Maine’s “nonsectarian” requirement was no longer controlling. 979 F.3d at 32–36. But it nevertheless affirmed the District Court’s grant of judgment to the commissioner. Id., at 49.

***

II

A

The Free Exercise Clause of the First Amendment protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” [citations omitted] In particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits. [citations omitted] A State may not withhold unemployment benefits, for instance, on the ground that an individual lost his job for refusing to abandon the dictates of his faith. [citations omitted]

We have recently applied these principles in the context of two state efforts to withhold otherwise available public benefits from religious organizations. In Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ––––, 137 S.Ct. 2012, 198 L.Ed.2d 551 (2017), we considered a Missouri program that offered grants to qualifying nonprofit organizations that installed cushioning playground surfaces made from recycled rubber tires. The Missouri Department of Natural Resources maintained an express policy of denying such grants to any applicant owned or controlled by a church, sect, or other religious entity. The Trinity Lutheran Church Child Learning Center applied for a grant to resurface its gravel playground, but the Department denied funding on the ground that the Center was operated by the Church.

We deemed it “unremarkable in light of our prior decisions” to conclude that the Free Exercise Clause did not permit Missouri to “expressly discriminate[ ] against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.” Id., at –––– – ––––, 137 S.Ct., at 2021. While it was true that Trinity Lutheran remained “free to continue operating as a church,” it could enjoy that freedom only “at the cost of automatic and absolute exclusion from the benefits of a public program for which the Center [was] otherwise fully qualified.” Id., at ––––, 137 S.Ct., at 2022...Such discrimination, we said, was “odious to our Constitution” and could not stand. 582 U. S., at ––––, 137 S.Ct., at 2025.

Two Terms ago, in Espinoza, we reached the same conclusion as to a Montana program that provided tax credits to donors who sponsored scholarships for private school tuition. The Montana Supreme *1997 Court held that the program, to the extent it included religious schools, violated a provision of the Montana Constitution that barred government aid to any school controlled in whole or in part by a church, sect, or denomination. As a result of that holding, the State terminated the scholarship program, preventing the petitioners from accessing scholarship funds they otherwise would have used to fund their children’s educations at religious schools.

We again held that the Free Exercise Clause forbade the State’s action. The application of the Montana Constitution’s no-aid provision, we explained, required strict scrutiny because it “bar[red] religious schools from public benefits solely because of the religious character of the schools.” Espinoza, 591 U. S., at ––––, 140 S.Ct., at 2255. “A State need not subsidize private education,” we concluded, “[b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” Id., at ––––, 140 S.Ct., at 2261.

B

The “unremarkable” principles applied in Trinity Lutheran and Espinoza suffice to resolve this case. Maine offers its citizens a benefit: tuition assistance payments for any family whose school district does not provide a public secondary school. Just like the wide range of nonprofit organizations eligible to receive playground resurfacing grants in Trinity Lutheran, a wide range of private schools are eligible to receive Maine tuition assistance payments here. And like the daycare center in Trinity Lutheran, BCS and Temple Academy are disqualified from this generally available benefit “solely because of their religious character.” 582 U. S., at ––––, 137 S.Ct., at 2021. By “condition[ing] the availability of benefits” in that manner, Maine’s tuition assistance program—like the program in Trinity Lutheran—“effectively penalizes the free exercise” of religion. Ibid. (quoting McDaniel, 435 U.S. at 626, 98 S.Ct. 1322 (plurality opinion)).

Our recent decision in Espinoza applied these basic principles in the context of religious education that we consider today. There, as here, we considered a state benefit program under which public funds flowed to support tuition payments at private schools. And there, as here, that program specifically carved out private religious schools from those eligible to receive such funds. While the wording of the Montana and Maine provisions is different, their effect is the same: to “disqualify some private schools” from funding “solely because they are religious.” 591 U. S., at ––––, 140 S.Ct., at 2261. A law that operates in that manner, we held in Espinoza, must be subjected to “the strictest scrutiny.” Id., at –––– – ––––, 140 S.Ct., at 2257.

To satisfy strict scrutiny, government action “must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (quoting McDaniel, 435 U.S. at 628, 98 S.Ct. 1322 (plurality opinion)). “A law that targets religious conduct for distinctive treatment ... will survive strict scrutiny only in rare cases.” 508 U.S. at 546, 113 S.Ct. 2217.

This is not one of them. As noted, a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause. See Zelman, 536 U.S. at 652–653, 122 S.Ct. 2460. Maine’s decision to continue excluding religious schools from its tuition assistance program after Zelman thus promotes stricter separation of church and state than the Federal Constitution requires. See also post, at 2004 *1998 (BREYER, J., dissenting) (States may choose “not to fund certain religious activity ... even when the Establishment Clause does not itself prohibit the State from funding that activity”); post, at 2012 (SOTOMAYOR, J., dissenting) (same point).

But as we explained in both Trinity Lutheran and Espinoza, such an “interest in separating church and state ‘more fiercely’ than the Federal Constitution ... ‘cannot qualify as compelling’ in the face of the infringement of free exercise.” Espinoza, 591 U. S., at ––––, 140 S.Ct., at 2260 (quoting Trinity Lutheran, 582 U. S., at ––––, 137 S.Ct., at 2024); see also Widmar v. Vincent, 454 U.S. 263, 276, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (“[T]he state interest ... in achieving greater separation of church and State than is already ensured under the Establishment Clause ... is limited by the Free Exercise Clause.”). Justice BREYER stresses the importance of “government neutrality” when it comes to religious matters, post, at 2009 but there is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.^*

III

The First Circuit attempted to distinguish our precedent by recharacterizing the nature of Maine’s tuition assistance program in two ways, both of which Maine echoes before this Court. First, the panel defined the benefit at issue as the “rough equivalent of [a Maine] public school education,” an education that cannot include sectarian instruction. 979 F.3d at 44; see also Brief for Respondent 22. Second, the panel defined the nature of the exclusion as one based not on a school’s religious “status,” as in Trinity Lutheran and Espinoza, but on religious “uses” of public funds. 979 F.3d at 38–40; see also Brief for Respondent 35. Neither of these formal distinctions suffices to distinguish this case from Trinity Lutheran or Espinoza, or to affect the application of the free exercise principles outlined above.

A

The First Circuit held that the “nonsectarian” requirement was constitutional because the benefit was properly viewed not as tuition assistance payments to be used at approved private schools, but instead as funding for the “rough equivalent of the public school education that Maine may permissibly require to be secular.” 979 F.3d at 44. As Maine puts it, “[t]he public benefit Maine is offering is a free public education.” Brief for Respondent 1–2.

To start with, the statute does not say anything like that. It says that an SAU without a secondary school of its own “shall pay the tuition ... at the public school or the approved private school of the parent’s choice at which the student is accepted.” Me. Rev. Stat. Ann., Tit. 20–A, § 5204(4). The benefit is tuition at a public or private school, selected by the parent, with no suggestion that the “private *1999 school” must somehow provide a “public” education.

This reading of the statute is confirmed by the program’s operation. The differences between private schools eligible to receive tuition assistance under Maine’s program and a Maine public school are numerous and important. To start with the most obvious, private schools are different by definition because they do not have to accept all students. Public schools generally do. Second, the free public education that Maine insists it is providing through the tuition assistance program is often not free. That “assistance” is available at private schools that charge several times the maximum benefit that Maine is willing to provide. See Stipulated Record, Exh. 2, in No. 1:18–cv–327 (Me., Mar. 12, 2019), ECF Doc. 24–2, p. 11; Brief for Respondent 32.

Moreover, the curriculum taught at participating private schools need not even resemble that taught in the Maine public schools. For example, Maine public schools must abide by certain “parameters for essential instruction in English language arts; mathematics; science and technology; social studies; career and education development; visual and performing arts; health, physical education and wellness; and world languages.” § 6209. But NEASC-accredited private schools are exempt from these requirements, and instead subject only to general “standards and indicators” governing the implementation of their own chosen curriculum. Brief for Respondent 32; see NEASC, Standards—20/20 Process (rev. Aug. 2021), https://cis.neasc.org/standards2020 (requiring, for instance, that “[c]urriculum planning supports the school’s core beliefs and the needs of the students,” and that the “[w]ritten curriculum aligns horizontally and vertically”).

Private schools approved by the Department (rather than accredited by NEASC) are likewise exempt from many of the State’s curricular requirements, so long as fewer than 60% of their students receive tuition assistance from the State. For instance, such schools need not abide by Maine’s “comprehensive, statewide system of learning results,” including the “parameters for essential instruction” referenced above, and they need not administer the annual state assessments in English language arts, mathematics, and science. [citations omitted]

There are other distinctions, too. Participating schools need not hire state-certified teachers…And the schools can be single-sex. See ECF Doc. 24–2, at 11. In short, it is simply not the case that these schools, to be eligible for state funds, must offer an education that is equivalent—roughly or otherwise—to that available in the Maine public schools.

But the key manner in which the two educational experiences are required to be “equivalent” is that they must both be secular. Saying that Maine offers a benefit limited to private secular education is just another way of saying that Maine does not extend tuition assistance payments to parents who choose to educate their children at religious schools. But “the definition of a particular program can always be manipulated to subsume the challenged condition,” and to allow States to “recast a condition on funding” in this manner would be to see “the First Amendment ... reduced to a simple semantic exercise.” [citations omitted]Maine’s formulation does not answer the question in this case; it simply restates it.

Indeed, were we to accept Maine’s argument, our decision in Espinoza would be rendered essentially meaningless. By Maine’s logic, Montana could have obtained the same result that we held violated the First Amendment simply by redefining its tax credit for sponsors of generally available scholarships as limited to “tuition payments for the rough equivalent of a Montana public education”—meaning a secular education. But our holding in Espinoza turned on the substance of free exercise protections, not on the presence or absence of magic words. That holding applies fully whether the prohibited discrimination is in an express provision like § 2951(2) or in a party’s reconceptualization of the public benefit.

Maine may provide a strictly secular education in its public schools. But BCS and Temple Academy—like numerous other recipients of Maine tuition assistance payments—are not public schools. In order to provide an education to children who live in certain parts of its far-flung State, Maine has decided not to operate schools of its own, but instead to offer tuition assistance that parents may direct to the public or private schools of their choice. Maine’s administration of that benefit is subject to the free exercise principles governing any such public benefit program—including the prohibition on denying the benefit based on a recipient’s religious exercise.

The dissents are wrong to say that under our decision today Maine “must” fund religious education. Post, at 2006 (BREYER, J., dissenting). Maine chose to allow some parents to direct state tuition payments to private schools; that decision was not “forced upon” it. Post, at 2014 (SOTOMAYOR, J., dissenting). The State retains a number of options: it could expand the reach of its public school system, increase the availability of transportation, provide some combination of tutoring, remote learning, and partial attendance, or even operate boarding schools of its own. As we held in Espinoza, a “State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” 591 U. S., at ––––, 140 S.Ct., at 2261.

B

The Court of Appeals also attempted to distinguish this case from Trinity Lutheran and Espinoza on the ground that the funding restrictions in those cases were “solely status-based religious discrimination,” while the challenged provision here “imposes a use-based restriction.” 979 F.3d at 35, 37–38...

In Trinity Lutheran, the Missouri Constitution banned the use of public funds in aid of “any church, sect or denomination of religion.” [citation omitted]. We noted that the case involved “express discrimination based on religious identity,” which was sufficient unto the day in deciding it, and that our opinion did “not address religious uses of funding.” [citation omitted]

So too in Espinoza, the discrimination at issue was described by the Montana Supreme Court as a prohibition on aiding “schools controlled by churches,” and we *2001 analyzed the issue in terms of “religious status and not religious use.” [citation omitted] Foreshadowing Maine’s argument here, Montana argued that its case was different from Trinity Lutheran’s because it involved not playground resurfacing, but general funds that “could be used for religious ends by some recipients, particularly schools that believe faith should ‘permeate[ ]’ everything they do.” [citation omitted] We explained, however, that the strict scrutiny triggered by status-based discrimination could not be avoided by arguing that “one of its goals or effects [was] preventing religious organizations from putting aid to religious uses.” [citation omitted]  And we noted that nothing in our analysis was “meant to suggest that we agree[d] with [Montana] that some lesser degree of scrutiny applies to discrimination against religious uses of government aid.” [citation omitted]

Maine’s argument, however—along with the decision below and Justice BREYER’s dissent—is premised on precisely such a distinction. [citations omitted]

That premise, however, misreads our precedents. In Trinity Lutheran and Espinoza, we held that the Free Exercise Clause forbids discrimination on the basis of religious status. But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause. This case illustrates why. “[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” [citations omitted]

Any attempt to give effect to such a distinction by scrutinizing whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational favoritism. [citations omitted] Indeed, Maine concedes that the Department barely engages in any such scrutiny when enforcing the “nonsectarian” requirement. [citation omitted] That suggests that any status-use distinction lacks a meaningful application not only in theory, but in practice as well. In short, the prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.

Maine and the dissents [advance]the argument that the State may preclude parents from designating a religious school to receive *2002 tuition assistance payments. In that case, Washington had established a scholarship fund to assist academically gifted students with postsecondary education expenses. But the program excluded one particular use of the scholarship funds: the “essentially religious endeavor” of pursuing a degree designed to “train[ ] a minister to lead a congregation.” [citations omitted]. We upheld that restriction against a free exercise challenge, reasoning that the State had “merely chosen not to fund a distinct category of instruction.” [citation omitted]

Our opinions in Trinity Lutheran and Espinoza, however, have already explained why Locke can be of no help to Maine here. Both precedents emphasized, as did Locke itself, that the funding in Locke was intended to be used “to prepare for the ministry.” Trinity Lutheran, 582 U. S., at ––––, 137 S.Ct., at 2023; see also Espinoza, 591 U. S., at ––––, 140 S.Ct., at 2257; Locke, 540 U.S. at 725, 124 S.Ct. 1307. Funds could be and were used for theology courses; only pursuing a “vocational religious” degree was excluded. Ibid.; see also Trinity Lutheran, 582 U. S., at –––– – ––––, 137 S.Ct., at 2022–2024 (explaining narrow reach of Locke); Espinoza, 591 U. S., at –––– – ––––, 140 S.Ct., at 2257–2258 (same).

Locke’s reasoning expressly turned on what it identified as the “historic and substantial state interest” against using “taxpayer funds to support church leaders.” 540 U.S. at 722, 725, 124 S.Ct. 1307. But as we explained at length in Espinoza, “it is clear that there is no ‘historic and substantial’ tradition against aiding [private religious] schools comparable to the tradition against state-supported clergy invoked by Locke.” 591 U. S., at ––––, 140 S.Ct., at 2259. Locke cannot be read beyond its narrow focus on vocational religious degrees to generally authorize the State to exclude religious persons from the enjoyment of public benefits on the basis of their anticipated religious use of the benefits.

* * *

Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

[dissenting opinions omitted]

142 S.Ct. 1583

Supreme Court of the United States.

Harold SHURTLEFF, et al., Petitioners

v.

CITY OF BOSTON, MASSACHUSETTS, et al.

No. 20-1800

|

Argued January 18, 2022

|

Decided May 2, 2022

Justice BREYER delivered the opinion of the Court.

*1587 When 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. [citations omitted] But when the government speaks for itself, the First Amendment does not demand airtime for all views. After all, the government must be able to “promote a program” or “espouse a policy” in order to function. [citations omitted] The line between a forum for private expression and the government’s own speech is important, but not always clear.

This case concerns a flagpole outside Boston City Hall. For years, Boston has allowed private groups to request use of the flagpole to raise flags of their choosing. As part of this program, Boston approved hundreds of requests to raise dozens of different flags. The city did not deny a single request to raise a flag until, in 2017, Harold Shurtleff, the director of a group called Camp Constitution, asked to fly a Christian flag. Boston refused. At that time, Boston admits, it had no written policy limiting use of the flagpole based on the content of a flag. The parties dispute whether, on these facts, Boston reserved the pole to fly flags that communicate governmental messages, or instead opened the flagpole for citizens to express their own views. If the former, Boston is free to choose the flags it flies without the constraints of the First Amendment’s Free Speech Clause. If the latter, the Free Speech Clause prevents Boston from refusing a flag based on its viewpoint.

We conclude that, on balance, Boston did not make the raising and flying of private groups’ flags a form of government speech. That means, in turn, that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint “abridg[ed]” their “freedom of speech.” U. S. Const., Amdt. I.

I

A

The flagpole at issue stands at the entrance of Boston City Hall…Built in the late 1960s, Boston City Hall is a raw concrete structure, an example of the brutalist style. Critics of the day heralded it as a public building that “articulates its functions” with “strength, dignity, grace, and even glamor.” [citations omitted] 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 gathering spac[e]” for the people. [citation omitted]

On the plaza, near City Hall’s entrance, stand three 83-foot flagpoles. Boston flies the American flag from the first pole (along with a banner honoring prisoners of war and soldiers missing in action). From the second, it flies the flag of the Commonwealth of Massachusetts. And from the third, it usually (but not always) flies Boston’s flag—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.” [citations omitted] The city’s policy is, “[w]here possible,” “to accommodate all applicants seeking to take advantage of the City of Boston’s public forums,” including the plaza and the area at the flagpoles’ base. [citations omitted]

[S]ince at least 2005, the city has allowed groups to hold flag-raising ceremonies on the plaza. Participants may hoist a flag of their choosing on the third flagpole (in place of the city’s flag) and fly it for the duration of the event, typically a couple of hours. Most ceremonies have involved the flags of other countries—from Albania to Venezuela—marking the national holidays of Bostonians’ many countries of origin. But several flag 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 flags, 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…Camp Constitution, asked to hold a flag raising event that September on City Hall Plaza. The event would “commemorate the civic and social contributions of the Christian community” and feature remarks by local clergy. [citation omitted] As part of the ceremony, the organization wished to raise what it described as the “Christian flag.” [citation omitted] To the event application, Shurtleff attached a photo of the proposed flag: a red cross on a blue field against a white background.

The commissioner of Boston’s Property Management Department said no. The problem was “not the content of the Christian flag,” but “the fact that it was the Christian flag or [was] called the Christian flag.” [citations omitted] The commissioner worried that flying a religious flag at City Hall could violate the Constitution’s Establishment Clause and found no record of Boston ever having raised such a flag. He told Shurtleff that Camp Constitution could proceed with the event if they would raise a different flag. Needless to say, they did not want to do so.

*1589 C

Shurtleff and Camp Constitution (petitioners) sued Boston and the commissioner of its Property Management Department (respondents). Petitioners claimed that Boston’s refusal to let them raise their flag violated, among other things, the First Amendment’s Free Speech Clause. They asked for an immediate order requiring Boston to allow the flag raising, but the District Court denied the request. [citations omitted] [A]t [the] close [of discovery], they filed cross-motions for summary judgment. The parties agreed to all relevant facts and submitted a joint statement setting them out. [citations omitted]

On that record, the District Court held that flying private groups’ flags from City Hall’s third pole amounted to government speech. [citations omitted] Hence, the city acted within its constitutional authority in declining to raise Camp Constitution’s flag. [citation omitted] The District Court therefore granted summary judgment for Boston. The First Circuit affirmed. [citation omitted]

Shurtleff and Camp Constitution…petitioned this Court for certiorari. We agreed to decide whether the flags Boston allows groups to fly express government speech, and whether Boston could, consistent with the Free Speech Clause, deny petitioners’ flag-raising request.

II

A

The first and basic question we must answer is whether Boston’s flag-raising program constitutes government speech. If so, Boston may refuse flags based on viewpoint.

The First Amendment’s Free Speech Clause does not prevent the government from declining to express a view. [citations omitted] When the government wishes to state an opinion, to speak for the community, to formulate policies, or to implement programs, it naturally chooses what to say and what not to say. [citations omitted] That must be true for government to work. Boston could not easily congratulate the Red Sox on a victory were the city powerless to decline to simultaneously transmit the views of disappointed Yankees fans. The Constitution therefore relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks. [citation omitted]

The boundary between government speech and private expression 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 government’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 review 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 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; *1590 and the extent to which the government has actively shaped or controlled the expression. [citation omitted]

Considering these indicia…we [previously] held that the messages of permanent monuments in a public park constituted government speech, even when the monuments were privately funded and donated. [citations omitted] [On the one hand,] we explained 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. [citations omitted] [O]n the other hand, we concluded that trademarking words or symbols generated by private registrants did not amount to government speech. [citation omitted] Though the Patent and Trademark Office had to approve each proposed mark, it did not exercise sufficient control over the nature and content of those marks to convey a governmental message in so doing. [citation omitted] These precedents point our way today.

B

Applying the government-speech analysis to this record, we find that some evidence favors Boston, and other evidence favors Shurtleff.

To begin, we look to the history of flag flying, particularly at the seat of government. Were we to consider only that general history, we would find that it supports Boston.

***

While…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 flags, those flags, too, expressed the city’s message. So we must examine the details of this flag-flying 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 flags representing the Nation, State, and city. Those flags wave “in unison, side-by-side, from matching flagpoles,” just outside “ ‘the entrance to Boston’s seat of government.’ ” [citation omitted] Like…monuments in [a] public park…, the flags “play an important role in defining the identity that [the] city projects to its own residents and to the outside world.” [citation omitted] So, like… license plates…, the public seems likely to see the flags as “ ‘conveying some message’ ” on the government’s “ ‘behalf.’ ” [citation omitted]

But as we have said, Boston allowed its flag to be lowered and other flags to be raised with some regularity. These other flags were raised in connection with ceremonies at the flagpoles’ base and remained aloft during the events. Petitioners say that a pedestrian glimpsing a flag other than Boston’s on the third flagpole 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 flag with them, not Boston. Thus, even if the public would ordinarily associate a flag’s message with Boston, that is not necessarily true for the flags at issue here. Again, this evidence of the public’s perception does not resolve whether Boston conveyed a city message with these flags.

*1592 Finally, we look at the extent to which Boston actively controlled these flag raisings and shaped the messages the flags 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 conflicts. 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 flags. But it is Boston’s control over the flags’ content and meaning that here is key; that type of control would indicate 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 flags it approved reflect particular city-approved values or views. Flying flags associated with other countries celebrated Bostonians’ many different national origins; flying other flags, Boston adds, was not “wholly unconnected” from a diversity message or “some other day or cause the City or Commonwealth had already endorsed.” [citations omitted] That may well be true of the Pride Flag raised annually to commemorate Boston Pride Week. [citations omitted] But it is more difficult to discern a connection to the city as to, say, the Metro Credit Union flag raising, a ceremony by a local community bank.

In any event, we do not settle this dispute by counting noses—or, rather, counting flags. That is so for several reasons. 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. [citations omitted] The 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 testified by deposition that he had previously “never requested to review a flag or requested changes to a flag in connection with approval”; nor did he even see flags before the events. [citations omitted] The city’s practice was to approve flag 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 flag-raising practices until this case. [citations omitted] True to its word, the city had nothing—no written policies or clear internal guidance—about what flags groups could fly and what those flags would communicate.

Compar[ing] the extent of Boston’s control over flag raisings with the degree of government involvement in our most relevant precedents [involving public monuments and license plates leads us to conclude that] Boston has no comparable record.

[Rather, the] facts of this case are much closer to [our recent precedent holding] trademarks were not government speech because the Patent and Trademark Office registered all manner of marks and normally did not consider their viewpoint, except occasionally to turn away marks it deemed “offensive.” [citations omitted] Boston’s come-one-come-all attitude—except, *1593 that is, for Camp Constitution’s religious flag—is similar.

Boston could easily have done more to make clear it wished to speak for itself by raising flags. Other cities’ flag-flying policies support our conclusion. The City of San Jose, California, for example, provides in writing that its “ ‘flagpoles are not intended to serve as a forum for free expression by the public,’ ” and lists approved flags that may be flown “ ‘as an expression of the City’s official sentiments.’ ” [citations omitted]

All told, while the historical practice of flag flying at government buildings favors Boston, the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech—though nothing prevents Boston from changing its policies going forward.

III

Last, we consider whether Boston’s refusal to allow Shurtleff and Camp Constitution to raise their flag amounted to impermissible viewpoint discrimination.

Boston acknowledges that it denied Shurtleff ’s request because it believed flying a religious flag at City Hall could violate the Establishment Clause. And it admits this concern proceeded from the premise that raising the flag would express government speech. [citations omitted] But we have rejected that premise…We must therefore consider 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 “constitutes impermissible viewpoint discrimination.” [citations omitted] Applying that rule, we have held, for example, that a public university may not bar student-activity funds from reimbursing only religious groups. [citations omitted] Here, Boston concedes that it denied Shurtleff ’s request solely because the Christian flag he asked to raise “promot[ed] a specific religion.” [citations omitted] Under our precedents, and in view of our government-speech holding here, that refusal discriminated based on religious viewpoint and violated the Free Speech Clause.

* * *

For the foregoing reasons, we conclude that Boston’s flag-raising program does not express government speech. As a result, the city’s refusal to let Shurtleff and Camp Constitution fly their flag based on its religious viewpoint violated the Free Speech Clause of the First Amendment. We reverse the First Circuit’s contrary judgment and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Justice KAVANAUGH, concurring.

This dispute arose only because of a government official’s mistaken understanding of the Establishment Clause. A Boston official believed that the City would violate the Establishment Clause if it allowed a religious flag to briefly fly outside of City Hall as part of the flag-raising program that the City had opened to the public. So Boston granted requests to fly a variety of secular flags, but denied a request to fly a religious flag. As this Court has repeatedly made clear, however, a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like. [citations omitted] On the contrary, a government violates the Constitution when (as here) it excludes religious persons, organizations, or speech because of religion from public programs, benefits, facilities, and the like. [citations omitted] Under the Constitution, a government may not treat religious persons, religious organizations, 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 fly what it characterized as a “Christian flag.” But I cannot 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, 135 S.Ct. 2239, 192 L.Ed.2d 274 (2015), derived from Pleasant Grove City v. Summum, 555 U.S. 460, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009). See ante, at –––– – ––––. 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 speaking instead of regulating private expression.

***

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 fly the petitioners’ flag while allowing a secular group to fly a strikingly similar banner. And the city admits it did so for one reason and one reason only: It thought displaying the petitioners’ flag would violate “ ‘the [C]onstitution’s [E]stablishment [C]lause.’ ” [citations omitted] That decision led directly 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 allowing all groups to fly their flags, 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, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Issued during a “ ‘bygone era’ ” when this Court took a more freewheeling approach to interpreting legal texts, [citations omitted] Lemon sought to devise a one-size-fits-all *1604 test for resolving Establishment 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 Constitution’s original meaning. Yet in this case, the city chose to follow Lemon anyway. It proved a costly decision, and Boston’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 focused on three questions: (1) Did the government have a secular purpose in its challenged action? (2) Does the effect of that action advance or inhibit religion? (3) Will the government action “excessive[ly] ... entangl[e]” church and state? 403 U. S., at 612–613, 91 S.Ct. 2105 (internal quotation marks omitted). But from the start, this seemingly simple test produced more questions than answers. How much religion-promoting purpose 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 entanglement” 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 conflicting directions? 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 flag or other similar public display to constitute an unconstitutional “establishment” of religion. [citations omitted]  After Lemon, cases challenging public displays under the Establishment 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 modified its “effects” test by requiring lower courts to ask whether a “reasonable observer” would consider the government’s challenged action to be an “endorsement” of religion. [citations omitted]  But rather than fix Lemon’s problems, this new gloss compounded 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. [citations omitted] Others suggested that a reasonable observer could make mistakes about the law or fail to consider all the facts. [citations omitted] And that suggestion only raised even more questions. 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 (admitted) errors about the relevant facts or law? [citations omitted]

Ultimately, Lemon devolved into a kind of children’s game. Start with a Christmas scene, a menorah, or a flag. Then pick your own “reasonable observer” avatar. In this game, the avatar’s default settings are lazy, uninformed about history, and not particularly inclined to legal research. His default 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 officials 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.” [citations omitted]

Our case illustrates the problem. The flags of many nations bear religious symbols. So do the flags of various private groups. Historically, Boston has allowed them all. The city has even flown a flag with a cross nearly identical in size to the one on petitioners’ flag. It was a banner presented by a secular group to commemorate the Battle of Bunker Hill. [citations omitted] Yet when the petitioners offered their flag, the city flinched. Perhaps it worried: Would the assigned judge’s imagined “reasonable observer” bother to learn about its generous policy for secular groups? Would this observer take the trouble to consult the long tradition in this country allowing comparable displays? Or would he turn out to be an uninformed passerby offended by the seeming incongruity of a new flag flying beside those of the city, State, and Nation? Who could tell. Better to err on the safe side and reject the petitioners’ flag. As it turned out, though, that route only invited 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 Amendment problem, Boston wound up inviting a real one. Call it a Lemon trade.⁴

*1606

*

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 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…, this Court looked primarily to historical practices and analogues to guide its analysis. [citations omitted] So, for example, while [members of this Court] disagreed…about what qualifies as an establishment of religion, 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.” [citations omitted] This approach fit, 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 [subsequent cases], the Court followed this same path when interpreting the Establishment Clause. Agree or disagree with the conclusions in these cases, there can be little doubt that the Court approached them in large part using history as its guide.⁶

Lemon interrupted this long line of precedents. It offered no plausible reason for ignoring their teachings. And, as we have seen, the ahistoric alternative it offered quickly proved both unworkable in *1607 practice and unsound in its results. Nor is it as if Lemon vanquished the field 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 “flawed in its fundamentals,” “unworkable in practice,” and “inconsistent with our history and our precedents.” [citations omitted]

Recognizing Lemon’s flaws, this Court has not applied its test for nearly two decades... Instead, [in 2013 for example] the Court explained that the primary question in Establishment Clause cases is whether the government’s conduct “accords with history and faithfully reflects the understanding of the Founding Fathers.” [citations omitted] The Court observed that this form of analysis represents the rule rather than “an exception” within the “Court’s Establishment Clause jurisprudence.” [citations omitted] .

In American Legion v. American Humanist Association we underscored the message. [citations omitted] 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. [citations omitted] [W]e explained that “[i]f the Lemon Court *1608 thought that its test would provide a framework for all future Establishment Clause decisions, its expectation has not been met.” [citations omitted] And again we stressed that the right place to look for guidance lies in “ ‘ “historical practices and understandings.” ’ ” [citations omitted]

*

With all these messages directing and redirecting the inquiry to original meaning as illuminated by history, why did Boston still follow Lemon in this case? Why do other localities and lower courts sometimes do the same thing, allowing Lemon even now to “si[t] up in its grave and shuffl[e] abroad”? [citations omitted] 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…Second, it seems that Lemon may occasionally shuffle from its grave [because the] abstract three-part test may seem a simpler and tempting alternative to busy local officials and lower courts. But if this is part of the problem, it isn’t without at least a partial remedy. For our constitutional history contains some helpful hallmarks that localities and lower courts can rely on.

***