Flag display policy adopted to allow resolution to fly flag
DELMAR – The Town of Bethlehem’s board of trustees unanimously voted at its April 24 meeting to fly the Pride flag at Bethlehem Town Hall during June 2024 to mark LGBTQ Pride month. The Board also proclaimed June 2024 as LGBTQ Pride Month. At the same time, the Town unanimously adopted for the first time a flag display policy,
As adopted, the flag policy requires the board to pass a resolution to fly a flag at town hall other than the U.S., State or Bethlehem flags. The policy further circumscribes flags to those “commemorating events or observances that have observance days already declared by Proclamation of the President of the United States or by Act of Congress.”
The new flag policy was passed in contemplation of the Town’s adoption of its Pride month declaration. Town Supervisor David VanLuven said the board began in January to consider designating June as Pride month and decided to display the Pride flag as part of that celebration. “Bethlehem is a welcoming community and celebrates and recognizes all members of our community in different ways. We thought it would be a positive thing for the Town,” VanLuven said.
Town board member Thomas Schnurr said the LGBTQ community has faced discrimination. “It is important to show this community as being part of Bethlehem and that we are proud to have them as neighbors here.”
The board established the policy at a time when across the country municipalities and school boards have prohibited Pride flag displays on public property. “The resolution is about celebrating the LGBTQ residents and the flag recognizes and celebrates those human beings’ existence,” said Bethlehem Pride Festival Coordinator Nora Yates. She said, “other communities may say they are supportive, but the Town took action, which really says who we are as a community.”
Although the federal and state governments already designate June as Pride month, VanLuven said the board thought it was appropriate for Bethlehem as a municipal government to celebrate and welcome LGBTQ community. “The Town has a right to express our views and we as a government want people to know we are a friendly and welcoming community and this is one avenue we have to do that.”
To accommodate the Pride flags, the Town will purchase two new flagpoles for Town Hall. The Pride flags will be lowered at the end of June’s Pride month. Schnurr said he intends to have the Pride flag flown next June. The Pride flags will not replace any flags currently flown by the Town.
To ensure compliance with a 2022 U.S. Supreme Court decision, Shurtleff v. City of Boston, the policy stresses that flags flown at Town Hall are “ a statement of the Town Board, and a form of government speech.” The policy further states that flagpoles and other spaces at Town Hall where a flag may be flown “constitute a government forum, not a public forum for private speech.”
In Shurtleff, the Supreme Court rejected Boston’s refusal to allow Camp Constitution, a private organization, to fly a Christian flag on a city-owned flagpole. Finding that Boston had no flag display policy, did not shape the flag messages, and had allowed about 50 other flag flyings, the Court ruled that no “government speech” was involved. Therefore, Boston’s refusal to fly Camp Constitution’s flag violated the First Amendment because the government was not speaking for itself and, accordingly, could not exclude private speech based on a particular viewpoint.
“We looked at this from different angles to ensure avoiding the Boston flag pole situation,” said VanLuven. “We as a Town government have the ability to express our views and we did not want the flagpole to become a point of view of controversy and legal wrangling,”
He said, “the policy makes clear the flag pole is not a place for different people or organizations in Town to display their flag. It’s a place for our town government to express its views and it can only be through a resolution that we can do that as a guardrail to avoid issues.”
Schnurr said the policy was crafted to ensure the Town’s flag flying constitutes government speech not subject to challenge by individual groups. He said both the June designation resolution and the flag flying policy align with events recognized by the U.S. Congress. “I don’t see how groups that don’t represent the values of our town could use the flagpole,” he said.
VanLuven said he “is absolutely confident” the policy would survive any legal challenge because it was reviewed by Town Attorney James Potter. Potter explained the Town’s flag display policy was intentionally drafted to avoid the pitfalls encountered by Boston in the Shurtleff case. The policy, he said, “is a well considered policy adopted before the first flag has been flown.”
Potter explained how the policy avoids unintended consequences that would allow private organizations whose message might not reflect the Town’s values to fly their flags at Town Hall. “The policy avoids any misunderstanding about the use of the flagpole and flag displays at Town Hall and makes it absolutely clear that this is a form of government speech and not a forum for the display of private message, ” Potter said. He pointed to language specifically linking flag flying to commemorations relating to federally recognized events and the restriction requiring a board resolution to fly a flag. He said that language also provides future town boards with “guidance” that must be met before opting to display a flag.
Potter, who has served as Town Attorney for 20 years, said to his knowledge the Town has previously only flown the federal, state and town government flags. Schnurr said there are no present plans to fly other flags under the new policy, but the Town may consider flying the MIA flag on Veterans’ and Memorial days.
The Town also voted, as part of Pride Month, to paint a rainbow crosswalk at Adams Street and Hudson Avenue as part of the upcoming June 22 Bethlehem Pride Festival. Schnurr said he considers the crosswalk also to be government speech and part of the Town’s proclamation. He believes private groups could not demand having their symbols or colors painted on the crosswalk.
Potter agreed. “The fact that the crosswalk is being painted is pursuant to a Town Board resolution and indicates it is government speech and not a display of any group’s message,” Potter said. He also said the Town could expand the policy to specifically include crosswalks.
When asked about Town resident response to the policy and the June designation, VanLuven said he had received only one email in opposition. He said, “In a community of 34,000 people, there will always be someone who disagrees with a decision we made, but that doesn’t mean we shouldn’t do anything.”
