Selectboard Denies Pride Flag Request Amid Legal and Policy Debate
The Selectboard considered a request to fly the Pride flag on municipal property and ultimately denied it following an extensive public discussion about free speech, inclusion, and legal risk. The decision reflected differing interpretations of how municipal flag displays are treated under evolving First Amendment case law and whether allowing any non-government flag could expose the town to future challenges. I supported the request based on the belief that visible affirmation of LGBTQIA+ residents aligns with Manchester’s stated values and existing inclusion commitments. While the vote did not reflect opposition to the LGBTQIA+ community itself, the outcome highlighted the tension between symbolic inclusion and cautious governance, and signaled that the town’s flag policy may require further review to better reconcile those priorities.
“I’m sitting here as a citizen, saying that we have to stand up for the people that live in our community.”
Reposted from Manchester Journal
MANCHESTER — In June of 2024, Manchester’s Select Board adopted a Municipal Flag Policy to guide when, where and how flags (other than the U.S. and Vermont flags, that is) can be displayed on town owned property. The creation of that policy was prompted by a request just weeks prior to fly the rainbow Pride Flag in June 2024 – a request which was ultimately denied.
On Tuesday, April 15, the Select Board was once again met with a request to fly the Pride Flag in June of this year, with the new policy in tow – but once again, the request was denied.
Proclamation supports LGBTQIA+ community, paves the way for Pride flags in Manchester
As might be expected in a dialogue encompassing political philosophy, free speech, inclusion and – by the same coin – exclusion, it was not without a few raised voices. But the largely civil, heartfelt and productive conversation seems to have paved a way to allow flags that align with Manchester’s values in the future.
It was the first time the Municipal Flag Policy had truly been tested. Last month, the Irish flag was flown on town property for a weekend under a prior Select Board proclamation from 2010, granting permission for the flag of the Republic of Ireland to fly in honor of Saint Patrick’s day as well as “the extraordinary breadth and depth of the Irish contribution to Manchester.”
The flag was ultimately removed when Town Hall reopened the following Monday, however, as the group had not sought permission from the Select Board as mandated by the newer June 2024 policy. According to Town Manager Scott Murphy, the group was invited to apply for such permission next year.
The precedent set by Tuesday’s Select Board decision may make that difficult, however.
Precedent in Manchester and beyond
After unanimously approving a revision to the policy articulating where such flags could be flown, board members were split on whether to accept a request to fly the Pride Flag, submitted by Manchester resident Virginia Dillihay.
“The Pride Flag is a recognized symbol of unity and support for the LGBTQ+ community and aligns with the town’s values of respect and equality,” Dillihay wrote in her request. “Many municipalities across Vermont and the country have taken similar steps to celebrate Pride Month and foster an environment of acceptance. Flying the Pride Flag in Manchester would send a positive message that our town is a welcoming place for all residents and visitors.”
Though no one at the meeting spoke against the Pride Flag in principle, nor the community it represents, opponents to Dillihay’s request cited their concern about whether flying anything other than the U.S. or Vermont flags would open the town up to legal risk.
Their concern is not without basis. In the 2022 legal case Shurtleff v. City of Boston, the Supreme Court held that the City of Boston violated the First Amendment when officials denied a flag application from a religious organization. According to an analysis published by the Boston Bar Association, that decision hinged on whether the policy and precedent surrounding the city's municipal flag poles “constituted government speech or instead created a public forum for private expression.”
“When the government speaks for itself, Free Speech protections do not apply — the government is allowed to communicate one message and not another. This has become known as the ‘government speech doctrine,’” explained Attorney Austin Anderson, who authored the analysis. “But the government violates the Free Speech clause if it selectively prohibits private speech based on the message it conveys.”
Boston’s policies around municipal flag poles drove the decision, Anderson argues. The policy articulated a desire to “accommodate all applicants,” with no design review, and the Supreme Court determined that, under such a policy, Boston must allow all flags – even those deemed offensive or inappropriate – to fly, meaning the flags could not be construed as government speech. Instead, justices ruled that the flag pole had become a public forum, where speech cannot be censored by the government.
Anderson points out, however, that lower courts reached the opposite conclusion. Additionally, the Supreme Court’s ruling in Shurtleff can be interpreted as contradictory to prior rulings like Walker v. Texas Div., Sons of Confederate Veterans, Inc. (in which the Supreme Court “upheld Texas’s refusal to issue a proposed specialty license plate with a confederate battle flag, relying on the government speech doctrine,”) and Matal v. Tam (in which “the Supreme Court struck down a law allowing the Patent and Trademark Office… to reject disparaging trademarks, holding that the PTO’s review and registration did not convert the marks into government speech").
“The difficulty in seeing how Shurtleff is consistent with the government speech doctrine suggests that this area of the law is evolving,” Anderson concluded. “...In light of the lack of clarity, states and municipalities should anticipate future modifications to the doctrine, which are almost certainly on the horizon.”
A policy paves the way… to a dead end?
Will Manchester be another test case for free speech on municipal flag poles? That’s exactly why Select Board Vice Chair Heidi Chamberlain voted in opposition to the Pride flag request. She was joined by members Greg Cutler and Laurie Kunz.
Chamberlain contended that allowing any flags other than the U.S. and Vt. flags would place the onus on the Select Board to be “judge and jury.”
“I’m very concerned about this,” she said. “I feel like … we’re treading on something that’s going to be a freedom of speech issue, and then we’re going to have to think about other organizations that we may not support that want – and have a right, then – to fly flags. When I’m looking at the unintended consequences of this, as much as I want to support one organization or another, this makes me very uncomfortable.”
Select Board member Jonathan West, who had first requested that the Pride flag be flown last year, countered that the current policy prohibited flags that could be construed as offensive, disrespectful or discriminatory, as well as flags that espouse hatred, racism, or violence, or are politically or religiously motivated. Additionally, under the policy, flags “shall not discriminate against persons based on race, color, national origin, religion, sex, gender, or any other characteristic protected by federal, state, or local law.
Chamberlain said that the policy may still leave too much room for interpretation – potentially opening the town up to legal challenges if the Select Board approved this request but denied another.
“I agree with Heidi. We created the policy and it sounds like the assumption is that we would automatically approve the Pride flag,” Cutler said. “I think we’re opening ourselves up to a number of problems, and it isn’t because it’s the Pride flag – it could be a number of flags.”
West and Chamberlain also went back and forth on whether the Pride flag could reasonably be construed as political. West contended that the Pride flag is an inclusive symbol welcoming to all human beings, but Chamberlain countered that such a view is not universal.
“I'm sitting here as a citizen, [saying] that we have to stand up for the people that live in our community,” West said, adding that uncertainty around how federal policies may impact LGBTQIA+ Americans made the local decision even more important.
Manchester resident Kyle Turner affirmed his support for flying the Pride flag in June, adding that other towns and cities had also developed policies and precedent that could further inform Manchester’s decision.
Fellow resident Sandra Marsh-Koffman said that deciding to fly the Pride flag – even if it opens the town up to risk – is an important gesture for Manchester’s LGBTQIA+ community and their allies.
“Right now, our federal government is taking away a lot,” Marsh-Koffman acknowledged. “When was it that Vermont had civil unions? People were up in arms, but we were going into a new era – and now we're trying to go backwards.”
“I know it's a difficult decision to put ourselves out there,” she concluded. “But I think that Vermont stands for acceptance, and inclusion, and it needs to be in Manchester proudly.”
Select Board Chair Ivan Beattie was one of just two members who voted in favor of the Pride flag request, alongside West.
“This board has embraced a policy of inclusion, we even passed a proclamation to that effect, which to me would lay the groundwork for approving this request and not another,” Beattie said. “We can’t be afraid to support the members of our community based on our fear of things becoming ugly down the road, which may not happen.”
Chamberlain took issue with Beattie’s characterization of fear-informed decision making, stating that her approach is based on a pragmatic view of what she believes is best for the community. Cutler agreed that such a position need not be informed by fear, nonetheless prejudice, and bemoaned the likelihood that – whatever position Select Board members took – there would be outcry on social media.
“If I vote ‘no’ because I agree with Heidi, because I think it’s going to invite problems, am I subjecting myself to who knows what?” Cutler said. “People don’t know that I’m a huge advocate for that population, they just see a ‘no’ vote. Our responsibility here is to think about the consequences, in the way that Heidi has discussed.”
“It's my responsibility to preserve and protect the Town of Manchester from negative consequences that are going to tear the fabric of this town, and I will proudly fly our Pride flag at home, which I did,” he continued. “... [But] you're never going to have a vote for me for the Pride flag or for any other group, because I think that puts Manchester at risk.”
From the audience, local resident Paul Carroccio suggested that the town amend the policy to allow flags for the federally recognized heritage months, of which there are six: African American History Month (February), Women's History Month (March), Asian Pacific American Heritage Month (May), LGBTQ Pride Month (June), Hispanic Heritage Month (September-October), and Native American Heritage Month (November).
It is unclear if Carroccio’s suggestion will undergo further consideration following Tuesday’s decision, however. Also from the audience, local resident Paige Vignola asked whether the Select Board’s decision represented a rejection of the Pride flag as a whole, or Dillihay’s request specifically.
Beattie responded that it may become a legal question but that, for now, it seemed that members were set in their respective stances. Kunz noted that the Select Board may need to review and revise the Municipal Flag Policy once again.
A tense but ultimately brief moment of silence followed the final vote.
“I know people are really disappointed,” Beattie said. “We are a community. We'll get past this. We need to appreciate each other. We need to appreciate the reasons why people voted against this… this is how democracy works.”
https://www.manchesterjournal.com/local-news/select-board-says-no-to-pride-flags-and-possibly-others/article_aa343833-6f46-437b-8795-20294958f40e.html
As always, I can be reached directly at (802) 768-7900 or at west.j@manchester-vt.gov
