SAN DIEGO (CN) — It’s a scene that’s become familiar, a diverse crowd of young people — this time in Carlsbad, California — telling their City Council members that flying the Pride flag will make them feel more included in their city, while a group of older residents demand that only the U.S. and state flags be flown.
A unanimous ruling in a Supreme Court case last year about the city of Boston’s lack of a policy for choosing which flags it allowed to be flown on city hall grounds was supposed to clarify how municipalities like Carlsbad could create their own policies for flying flags on city property.
Instead, municipalities across the country have diverging interpretations about the ruling's implications while they try to dodge potential lawsuits as more kindling gets added onto the fires of the culture war.
In June, in recognition of Pride month, the Carlsbad City Council voted to allow the Pride flag to fly outside of City Hall for the first time ever. Before, the city had its share of debates and demonstrations about the flag.
The issue was again brought up for discussion this month, this time with an extra layer of controversy and media attention after Councilmember Melanie Burkholder added a list of flags that constituents had requested the city fly — including a “marijuana flag,” the National Rifle Association’s flag, and the Confederate flag — to the agenda in her request to discuss the city’s flag policy.
At a packed council meeting filled with TV cameras, young people spoke directly to Burkholder during public comment, telling her that they felt unsafe and unwelcomed in a city that would consider flying the flag of the NRA or the Confederacy, seemingly as a petty slight for allowing the Pride flag to go up in June.
But Burkholder was adamant that she wasn’t proposing that the city fly the NRA, Confederate, or any other flag besides the American flag and the flag of California, but that she was just telling the council what flags constituents had requested the city fly. She warned her colleagues that if they did not come up with their own policy, the city could face a lawsuit for refusing to fly one flag while allowing another to fly.
“The whole point was to come to a consensus somehow,” Burkholder said after the meeting, adding that if the city didn’t come up with a policy, the courts would decide for them based on the U.S. Supreme Court's 2022 ruling in Shurtleff v. City of Boston.
In that case, the court unanimously ruled that the city of Boston violated the free speech rights of a conservative activist when it refused his request to fly a Christian flag outside of city hall.
Although the city allowed requests to fly other flags, like the Pride flag and even flags of other countries, they denied a Christian flag because of concerns that it would violate the First Amendment's establishment clause and make it seem like the city was endorsing a religion.
The city won the case in both trial court and the First Circuit Court of Appeals, but the Supreme Court ultimately sided with the conservative activist pushing for the flag, ruling Boston had discriminated against him because it lacked a policy in selecting which flags went up and which didn’t made the flag pole equivalent to private speech, not government speech.
“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,” Justice Stephen Breyer wrote for the court.
