In Wakefield, a recent Town Council meeting took a 45-minute detour over whether the board should be in “the business.” Leaders in Williamstown believe they should steer clear completely. The debate was so thorny in Fitchburg, it prompted a rare mayoral veto.
The sticking point each time? Flags. Or more precisely, which ones.
A year after the US Supreme Court ruled it was unconstitutional for the City of Boston to deny a Christian group’s flag-raising request, selectboards and city councils across Massachusetts are navigating the legal and political thicket left in the decision’s wake.
Local elected officials are discussing not just what should fly on municipal flagpoles but how to even go about reaching such a decision. The Supreme Court decision has sparked questions over “power” and responsibility, and whether a small group of elected officials could, or should, speak for their community’s values at large.
That’s a weighty debate for a half-pound of nylon.
“You’re right, who thinks about flags?” said Julie Smith-Galvin, a member of Wakefield’s Town Council, which approved a flag policy last year but as recently as late March found itself again debating the new protocol before voting to fly the Progress Pride Flag and Juneteenth Flag outside a local civic center in June.
“But politicians have to be brave and stand up and take votes on these really hard community issues that these flags have come to symbolize,” Smith-Galvin said. “No decision that we make — from potholes to flags — is going to make 100 percent of the town happy.”
The focus on flags rushed to the fore last spring, when the Supreme Court issued a closely watched decision, ruling that the City of Boston violated the First Amendment rights of a Christian group by refusing its request to raise a flag outside City Hall in 2017.
Over more than a decade, the city had approved 284 requests from various countries, causes, businesses, and organizations, but denied only one — the request from Camp Constitution to raise a white banner with a red Christian cross in connection with Constitution Day.
The city, however, didn’t have a written policy at the time governing flag-flying requests from outside groups, and in a decision written by since-retired Justice Stephen Breyer, the court denied the city’s argument that its flag-raising program was a form of government speech. The Christian group’s flag was eventually raised above City Hall Plaza in August.
Days later, the city adopted an ordinance requiring a mayoral proclamation or City Council resolution to fly most other flags on one of the flagpoles on City Hall Plaza other than the US, state, and city flags. In it, the city explicitly states that the flagpoles are “not intended to serve as a forum for free expression by the public.”
Deanna Barkett FitzGerald, a senior attorney with Ropes & Gray who helped represent the City of Boston before the Supreme Court, said the decision gives cities and towns a “roadmap” to operate flag-raising programs within the bounds of the Constitution. They have to make clear, FitzGerald said, that the flags they’re raising are government speech — as in the government speaking for itself — and that the flagpoles are not serving as a public forum for the private speech of others.
”If cities and towns want to speak for themselves on municipal flagpoles, and therefore be able to choose the messages they will or won’t endorse, they should make it very clear that they’re taking ownership of the message,” FitzGerald said.
Now officials from Martha’s Vineyard to Western Massachusetts are wrestling with those very questions.
In Oak Bluffs, officials have been at odds about whether to allow the Progress Pride and Juneteenth flags to fly on a flagpole in a town park as part of their formal policy, with one lamenting that if they allow too many to fly, the town flagpole would “look like a fishing tournament,” the Martha’s Vineyard Times reported.
Days after the Supreme Court ruling, officials in Reading chose to do the “safe thing,” according to meeting minutes, and not allow flag requests. Next door in Wakefield, Town Councilor Ed Dombroski has argued the town should do the same, even though he said he supports flying certain banners.
“Things like the Progress flag are an easy call to make,” said Dombroski. “The concern I have is that when you’re calling balls and strikes like this, you’re inherently creating the potential for a rather divisive issue.”
A bylaw will go before town meeting in Williamstown next month that would allow only three flags — the US flag; the Massachusetts state flag, and the Prisoner of War/Missing in Action flag — to fly at Town Hall and other town buildings. The town’s Select Board recommended the language.
“We decided to stay in our lane and reserve ourselves to town governance issues,” said Andrew Hogeland, who sits on the Select Board and serves as president of the Massachusetts Select Board Association. “It’s a matter of how much do you want to be the entity that declares what the values of the municipality are. In our view, we thought our citizens are pretty good at doing that themselves.”
Others have embraced broader policies. Belchertown officials left themselves the option to fly other flags if approved by the town’s Select Board, as did Chicopee, which embraced language similar to Boston’s to fly ceremonial flags that come with a mayoral proclamation or City Council resolution.
Being able to fly certain flags, be it for organ donor awareness or autism awareness month, help people “feel welcome” in the city, said Chicopee City Councilor Mary Beth Pniak-Costello.
“It’s a unifier,” she said.
Not always. A high school senior in Stoughton was suspended a half-day in January after she walked out of class in support of three teachers who were warned to stop displaying LGBTQ+ Pride flags in classrooms under a policy prohibiting the display of any “political” items.
Dighton residents in 2021 embraced a bylaw that restricted which flags the town could fly after officials proposed flying the Pride flag. After the Supreme Court ruling, then-Attorney General Maura Healey told town officials that part of the bylaw was unconstitutional, in part because it could be interpreted as prohibiting someone from wearing a shirt displaying another flag on town property.
In Fitchburg, the debate has also created inter-branch friction. Mayor Stephen DiNatale decided in December to allow, and appear at, a flag-raising of a so-called “nuclear family” flag, just months after the city raised the Pride flag. The move drew quick condemnation from members of the City Council and LGBTQ advocates, who called it an attempt “to further marginalize people.”
At the time, the mayor alone approved any flag requests. “I don’t think I’ve ever denied anyone,” DiNatale said in a phone interview.
Weeks after the “nuclear family” controversy, DiNatale issued an executive order restricting which flags could fly, only for the Council to narrowly pass its own proposal giving itself decision-making power over flags.
“It was a failure of leadership on the part of the mayor. But it was also a failure of process,” Andy Van Hazinga, the City Council’s vice president and the proposal’s sponsor, said of the “nuclear family” flag raising. “It’s more than a piece of fabric flying on a flagpole. It’s a message the city sends. We want to make sure we’re using it the right way and using it to good ends.”
But the Council proposal didn’t survive. DiNatale vetoed it — “the first [veto] I’ve seen,” Van Hazinga said. Then the mayor revised his own executive order to give the Council the ability to approve some flags by resolution.
“I’m embarrassed to admit it: I’m not sure how it’s going to work,” DiNatale said. “I just didn’t want to fall into this situation again.”