A contingent of Delaware residents was on hand during Monday’s meeting of City Council to speak out against the city’s decision to pause its flag and banner policy in light of a recent ruling by the U.S. Supreme Court.
The decision by the city came just weeks before the annual celebration of Pride Month in June, drawing the ire of some residents who feel the policy suspension is a suppression of the LGBTQ community’s celebration. Residents took their turns Monday urging the city to honor its previous approval of the flags and to continue proclaiming June as Pride Month in Delaware.
City Manager Tom Homan recommended the pausing of the policy during council’s meeting on May 9 in order to further analyze the Supreme Court’s ruling on the Harold Shurtleff v. City of Boston case. On May 2, the Supreme Court ruled the City of Boston acted in violation of the U.S. Constitution when it refused to let a local organization fly a Christian flag on one of the three flag poles sitting in front of its city hall.
The City of Boston has long allowed various organizations to fly their flags on the third flag pole, otherwise used to fly the city flag, when organizations hold ceremonies on the city hall plaza. However, the City of Boston denied Shurtleff and his Camp Constitution organization the ability to fly a Christian flag on the pole, arguing that flying the flag would represent an endorsement of religion from the city government.
At the heart of the Supreme Court case was the need to differentiate between government speech and public forum. In the Supreme Court’s opinion, Justice Stephen Breyer said, “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.”
During the case, it was determined that the City of Boston had no written policy limiting the use of the flag pole based on the content of a flag. There were disputes over whether or not the City of Boston reserved the pole to fly flags communicating governmental messages or instead opened the pole for citizens to express their own views.
Ultimately, the Supreme Court decided the city had not reserved the pole for flags displaying governmental messages in the hundreds of approved flag submissions prior to Shurtleff’s request and had, therefore, infringed upon the Freedom of Speech Clause of the Constitution.
Breyer added, “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,” Breyer added.
During the May 9 council meeting, Homan requested the pause “in order to understand this decision better” and to conduct a “risk assessment” of its own flag and banner policy pertaining to government property. Homan estimated it would take upwards of three to four months to conduct their research and analysis before issuing recommendations to council on policy updates.
In the meantime, all third-party organizations will be denied the ability to fly flags on government property, effective immediately, Homan said on May 9.
“I think that, at the end of the day, having the rainbow flag flying for a brief time — it’s not even the entire month of June — really is a signal to a lot of people in the community … I really hope that you all choose to honor the approval we’ve already gotten,” one resident said to council on Monday. “The community is going to fly them either way, so we’d love to have the city with us on that. It was just so darn cool to see that last year, and we hope you see that also.”
Another resident claimed the city has acted “preemptively” to the possibility of a future lawsuit brought forward by “some bigot” and challenged the city not to appease those who wish to silence the LGBTQ community.
“If the decision to hold off flying them is not simply a convenient excuse to mollify homophobes and bigots, then fly them until you have to deal with an actual problem and not a what-if,” he implored council. “There are only two sides to this issue. Either you stand for equality and inclusion or you give bigots what they want.
“Saying that other groups are being temporarily denied flag permits is a spurious rationalization of this. Other groups will not be impacted the way that the LGBTQ+ citizens are by your withdrawal of support. Inaction is tantamount to siding against them. I urge you to take an inclusive stand and mean it, or at least spare us your feckless expressions of concern.”
Following the public comments, council members expressed general sympathy for the LGBTQ community’s disappointment with the city but struggled to justify continuing with plans to fly the flags with the policy paused. Ultimately, council remained firm in its decision to deny all third-party flag and banner requests while the policy is being analyzed by the city’s legal team.
“The timing sucks, that’s what I can tell you,” Mayor Carolyn Riggle told those in attendance. “Had this (court ruling) not come down on May 2, your flags would be up in June. It was our suggestion that we put a pause on this and let our attorney make sure that what we’re doing is correct. It was nothing against you at all.”
Riggle added, however, that she still intends to issue a proclamation recognizing June as Pride Month in Delaware.
