The Volokh Conspiracy
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Hamtramck (Michigan) May Stop Flying Pride Flag and Other Flags on City Flagpoles
From Monday's decision by Judge David Lawson (E.D. Mich.) in Gordon v. City of Hamtramck:
This case concerns a dispute over the display of flags on a series of 18 flagpoles located on city sidewalks lining Joseph Campau Avenue in the City of Hamtramck's downtown historic district. It is undisputed that the flagpoles are on public property and owned by the City. At the center of the dispute is the display of a Gay Pride flag, once sanctioned by [the city Human Relations Commission] and then banned by city government after a change in administrations and a corresponding policy reversal. The plaintiffs, Russ Gordon and Cathy Stackpoole, were members of that commission before they were dismissed for pressing the issue….
In 2021, the Hamtramck City Council authorized the display of a Pride flag at a city-owned flagpole, but then in 2023 it reversed course, implementing this resolution:
WHEREAS, the City of Hamtramck is one of the most diverse cities in the United States, in which we should proudly promote and embrace its diversity; and
WHEREAS, the City must and will serve and treat its residents equally, with no discrimination, or special treatment to any group of people; and
WHEREAS, the City has authorized in the past, the Human Relations Commission to install nations['] flags on the City flagpoles to represent the international character of the City, Resolution 2013-102: and
WHEREAS, each religious, ethnic, racial, political, or sexually oriented group is already represented by the country it belongs to; and
WHEREAS, the City does not want to open the door for radical or racist groups to ask for their flags to be flown; and
WHEREAS, this resolution does not in any way, shape or form infringe upon the fundamental right of an individual or business in the City of Hamtramck to engage free speech. Nor does this resolution limit speech by public employees provided that such employees engage in such speech in a protected time, manner and place.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Hamtramck, Wayne County, Michigan, that the government of the City of Hamtramck does not allow any religious, ethnic, racial, political, or sexual orientation group flags to be flown on the City's public properties, and that only, the American flag, the flag of the State of Michigan, the Hamtramck Flag, the Prisoner of War flag and the nations' flags that represent the international character of our City shall be flown.
Gordon and Stackpoole then "took the personal view that the resolution was an unconstitutional restriction on speech contrary to the First Amendment, and, on July 9, 2023, acting on their own initiative, Gordon and Stackpoole raised the Pride flag on one of the Joseph Campau Avenue flagpoles." "Hamtramck police were summoned by the Mayor and soon removed the flag." After that, the City Council removed plaintiffs Stackpoole and Gordon from their positions on the HRC, and "stripped the HRC of authority over the flagpole displays."
Gordon and Stackpoole sued and moved for partial summary judgment, but the court disagreed:
This case begins and ends with Shurtleff v. City of Boston, which is both squarely on point and constitutes the leading and most recent controlling authority regarding First Amendment treatment by the Supreme Court of flagpole displays…. Resolution 2023-82 substantially altered the nature of the forum presented by Hamtramck's public flagpoles, and that alteration in turn is dispositive of [plaintiffs'] First Amendment claims. [T]he closure of a limited public forum by municipal authorities was expressly recognized as constitutionally permissible in Shurtleff….
As the [Shurtleff] Court observed: "All told, while the historical practice of flag flying at government buildings favors Boston, the city's lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech—though nothing prevents Boston from changing its policies going forward." The Court also endorsed the type of regulations enacted in other cities that expressly limit and specify which flags can be displayed, indicating that such an enactment would tip the balance of the forum- classification analysis: "Boston could easily have done more to make clear it wished to speak for itself by raising flags. Other cities' flag-flying policies support our conclusion. The City of San Jose, California, for example, provides in writing that its 'flagpoles are not intended to serve as a forum for free expression by the public,' and lists approved flags that may be flown 'as an expression of the City's official sentiments.'" The regulation here fits precisely into that niche….
The court likewise rejected plaintiffs' Establishment Clause claim:
The plaintiffs … posit[] that the enactment of Resolution 2023-82 that effectively banned display of the Pride flag violated the Establishment Clause because it was promulgated "to accommodate a segment of the Hamtramck community which was hostile to the rights of the gay community based on their personal religious views." The plaintiffs cite several statements in this record by city councilpersons condemning homosexuality and expressing hostility to the sentiments that the Gay Pride flag may symbolize.
However, the plaintiffs' "evidence" of subjective motivation to advance a religious viewpoint is irrelevant to the analysis of alleged Establishment Clause violations. "The eyes that look to purpose belong to an objective observer, one who takes account of the traditional external signs that show up in the text, legislative history, and implementation of the statute, or comparable official act."
"[I]t is virtually impossible to determine the singular 'motive' of a collective legislative body, and [the Supreme] Court has a long tradition of refraining from such inquiries…. The First Amendment does not refer to the purposes for which legislators enact laws, but to the effects of the laws enacted[.] This does not put [the Court] in the business of invalidating laws by reason of the evil motives of their authors." Accordingly, "[i]t is a familiar principle of constitutional law that [courts] will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive. As the [Supreme] Court long ago stated: 'The decisions of this court from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted.'"
On its face, Regulation 2023-82 is devoid of any reference or endorsement of any religion or viewpoint. In fact, it evidences an intent by the City to avoid endorsing any private credo at all. Whether or not any subjective animus toward a particular viewpoint motivated the adoption of the regulation is entirely irrelevant, since "[t]he Supreme Court [has] repeatedly explained that legislators' personal motivations for enacting a regulation are irrelevant to First Amendment challenges to government regulations; [and] only the government's asserted justifications are pertinent." The justifications advanced here—foreclosing public controversy and avoiding contentious litigation over displays of competing viewpoints—have been found to be constitutionally valid by courts that upheld regulations with indistinguishable limitations on flagpole displays….
The court also concluded that plaintiffs' Equal Protection Clause argument was insufficiently developed to be considered.
