In the very warm, early morning of the last day of Pride month, a Pride flag stirred slightly in the quiet wind across from Fairhaven Town Hall.
If you stood in just the right spot of the doorway of Howe Allen Realty, it looked like that flag was the gateway to Town Hall, sleepily giving its witness in the sultry summer air.
It wasn’t of course.
The three-member Board of Selectmen has made it clear over the last month that the Pride flag has no place on the property that is the seat of town government in Fairhaven.
Something about their not wanting to set a bad precedent.
The board had repeatedly shot down an effort by School Committee member Kyle Bueno, to hang the flag on town property during June Pride Month. In fact, the board has rejected any attempt by Bueno and his supporters to fly the flag for the month’s-long time. After a while, they tried to shut the whole discussion down, saying the town would no longer allow the display of any banners beyond the American, state and POW flags.
After the board gave their back hand, a group supporting hanging the colorful flag — often called the Rainbow flag — planted 100 miniatures of it on the Town Hall lawn, and then again 200 mini-flags two days later. Both times the little bit of Pride was removed by morning.
Bueno has said that as a gay man, seeing the Rainbow flag at Town Hall, makes him feel like someone is watching out for him. “I feel this should not have been a political issue,” he said.
That rainbow flag at Howe Allen Realty is the so-called Progressive Pride version of the flag, designed to pay tribute to the Black, brown, transgender and HIV-positive individuals who led much of the original gay rights movement. It was a full-size flag and very visible on one of Fairhaven Village’s main commercial blocks. Hardly a bastion of revolution in the town.
And yet, Selectmen Dan Freitas and Keith Silvia, were somehow adamant that Town Counsel Tom Crotty had warned them that the Pride flag could open the door to Hitler’s Iron Cross banner, the Confederate battle flag and all sorts of fiscal and cultural mayhem.
“He said if we were to fly it, then somebody could come in and fly the Nazi flag and we were stuck with it,” Freitas told the TV station 10 Boston. “We could say no, but then we’d be sued.”
Well, not exactly.
In fact, Crotty simply laid out the reality, that somebody, somewhere, somehow can always bring a lawsuit against a municipal government for no good reason, which would include “noxious groups” (his description) like the Proud Boys or Nazis.
Here’s what Crotty told me in answer to my question about whether there was not some legal compromise to flying the Pride flag that could be worked out. “Any compromise they could work out to display the Pride flag would be legal. Whatever they work out is fine with me in terms of legality.”
Crotty said he was simply pointing out that if the board did deny what he calls a noxious group, there could be “a potential issue.”
The hard-working, longtime town attorney seems like he is trying to navigate his way through the thicket of Fairhaven’s increasingly divisive town politics, and he may have been overstating the case a little by calling it even a “potential” issue.
Freitas, of course, is already the target of an unprecedented July recall election in Fairhaven, which is at present deeply divided over issues that seem to be about differing political philosophies as much as anything. The same differing philosophies, in fact, that are tearing the country apart.
The reality is that there is little doubt that if anyone sued a Massachusetts town over the Rainbow Pride flag — first used in San Francisco in 1978 — they would lose. And probably lose quickly.
That’s because at least in Massachusetts, the question of whether a municipality can fly one group’s flag and deny another group’s has already been decided three separate times, once in federal district court in 2018, again in the federal appeals court in 2019 and a second time in federal appeals court this past January.
The courts decided in favor of the City of Boston vs. Harold Shurtleff and Camp Constitution that municipal speech is not the same as free speech. Boston, it said, has the right to determine which speech it wants to use because federal courts have repeatedly ruled that “government speech” is not the same thing as “free speech” between private individuals.
According to the Legal Information Institute, a nonprofit information service of Cornell Law School, the rationale for this speech being different from free speech is that “the government could not ‘function’ if the government could not favor or disfavor points of view in enforcing a program.”
The City of Boston told the federal court that in an effort to foster diversity and inclusiveness, it had flown 284 different flags over the course of 12 years between 2005 and 2017. Camp Constitution then came along and wanted to “raise the Christian flag,” which concerned the city because it was the first time anyone had asked to raise a flag with a directly religious message.
The First Circuit United States Court of Appeals ruled against Camp Constitution, deciding that unlike a debate between private citizens, the city government has the right to control “the image of the city it wishes to project.”
For its part, Boston formalized its flag-raising policies about a year after the Camp Constitution suit, forbidding the “display (of) flags deemed to be inappropriate or offensive in nature or those supporting discrimination, prejudice, or religious movements.”
The City of New Bedford, which for years has regularly flown the flags of the nations representing its various ethnic groups, as well as the Pride flag, was well aware of the precedent involving the City of Boston. It provided me with a copy of the latest ruling after I asked if New Bedford were not afraid of being sued.
“Displaying the LGBTQ flag is considered government speech, and city government has the right to decide what message it wants to convey through government speech, such as the use of a city flagpole in this instance,” wrote public information officer Jon Carvalho.
Bueno, for his part, has been going round with the selectmen for several years on this issue. Last year, in an effort at compromise they allowed an LGBTQ+ ceremony, and for the Pride flag to be hung for a limited time. But Bueno has said he did not want to go backward this year, he wanted to go forward and fly the flag for the whole month.
Crotty said he agrees that as a result of last year’s flying of the Pride flag, a precedent for a lawsuit from a “noxious group” has already been set in Fairhaven. So why not hang the banner again this year?
It seems like there’s something else going on in Fairhaven.
And if it looks like a duck and quacks like a duck, it’s probably a duck, right?
The truth is that the Fairhaven Board of Selectmen simply doesn’t want to hang the Pride flag for any extended time. (To be fair, Selectmen Bob Espindola, who has repeatedly voted to fly the flag, should not be included here.)
The board, of course, has every right to send any message it wants, as the federal courts have ruled. And who knows, it’s even possible that the increasingly conservative Supreme Court will overturn the Boston federal courts on a religious issue such as this. But if they allow cities and towns to fly a Christian flag, then they will indisputably also allow the flying of the Muslim, Hindu and other flags of religions with significant followings.
The Fairhaven board seems to be saying that the remote fear of a lawsuit is more important to them than hanging the Pride flag for the month of June. That’s fine — if that is the message they want to send about Fairhaven. It’s their town.
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