The Oak Bluffs select board unanimously approved its controversial flag policy on Tuesday, despite previously agreeing to fly the Progress Pride flag for two weeks in June. The decision to fly the Pride flag on town property still stands, according to the select board and town counsel Ron Rappaport, because it was agreed upon before the enactment of the town’s flag policy.
As written, the policy states the town would prohibit any flags, other than those approved by the select board — flags of the U.S., commonwealth of Massachusetts, town of Oak Bluffs, and official military and POW-MIA — from being raised on any town property. The suggested flag policy cited that “the choice of which flags to raise on town flagpoles is government speech,” to which the First Amendment does not apply, and in effect cannot “designate town flagpoles as a public forum by permitting third parties to raise flags.”
The approval of the policy follows a recent Supreme Court decision ruling that the city of Boston was in violation of the First Amendment when it denied a request by a conservative activist group to fly a Christian flag outside City Hall.
The select board referred to the Supreme Court’s ruling when the town’s flag policy was up for vote, raising concerns about opening themselves up to possible lawsuits. Rappaport explained that the court ruled “the government can speak. Government can have a point of view. [If] the government is in favor of Pride Week, that’s fine. The government’s speaking. What the government can’t do is open the flagpole up as a public forum, and then decide what can be flown and what can’t be flown … once you open it up, you can’t pick and choose.”
Rappaport said the flag policy is recommended, noting that the interim flag policy that the select board approved “is legal,” and the Supreme Court ruling is “a good example of how the First Amendment should work.”
Select board member Brian Packish clarified that the flag policy is “a very restrictive policy, basically [covering] all our bases … the Supreme Court decision is not a deviation from the law, it’s a clarification of the law.”
Regarding concerns by Packish that the board’s previous decision to fly the Progress Pride flag may “open the door for [the board] to be in an unprotected situation,” Rappaport reiterated that because the vote preceded the Supreme Court decision, the Pride flag may still be allowed.
“Moving forward, all flags would [be] subjected to the policy,” said Packish, which Rappaport confirmed, adding, “but I will also say, that it’s fine for the town, and its leaders, to say, ‘We’re in favor of flying the Pride flag.’”
When asked by The Times for clarification, Rappaport said that the select board “can speak on the causes they choose,” and that flying a flag is considered free speech. When asked how that can come into play with such a restrictive policy, Rappaport said, “It is an interim policy until they adopt [a permanent one].”
Rappaport explained that issues arise when there is a request to fly a flag that is divisive to the community.
Packish then stated that the select board has gotten requests from the community for other flags to be flown, in addition to “hate email.”
Preceding the vote to approve the policy, the president of NAACP Martha’s Vineyard, Arthur Hardy-Doubleday, testified. “I would caution the select board in adopting a policy, which again, ties your hands.”
Hardy-Doubleday added, “After this meeting today, it’s particularly difficult for the NAACP,” citing an approved application to “raise the Juneteenth flag before Juneteenth weekend.” He asked that the select board amend the flag policy to allow both the Pride Flag and Juneteenth flag — a symbol of African American freedom and emancipation from slavery — to be raised this year.
“Since you’re discussing a policy that would prohibit us from raising the Juneteenth flag, I ask that you may consider letting that in on an interim basis.”
Select board member Jason Balboni said he thinks the flag policy should remain as written. “It’s a bad idea after this decision is made to approve more flag requests,” he said.
Balboni said that he “understands” Hardy-Doubleday’s request, adding that he “voted to accept June nineteenth as a town, along with everybody else,” a comment which was met with swift correction from a voter, who noted that Juneteenth is considered a federal holiday.
When Balboni raised concerns about the Juneteenth flag, questioning if raising it would cause legal issues for the town, Rappaport said, “Probably not. June 19 is a federally recognized holiday … you’re on pretty safe grounds.”
Still, numerous echoing concerns by the board about the legality of raising the Juneteenth flag were met with the same answer from Rappaport.
Select board member Gail Barmakian said she was “uncomfortable” with raising another flag, stating she doesn’t “want to get in trouble with it.”
Select board member Emma Green-Beach advocated for Hardy-Doubleday’s suggested amendment to the policy, allowing both the Pride flag and Juneteenth flag be raised on town property. She asked if amending the policy would allow for a “safe space,” avoiding possible lawsuits.
Rappaport replied that there’s a “safe harbor” in approving the amendment, and that the select board should be less concerned with lawsuits in this specific situation. “Anyone can sue,” he said.
Regardless, Packish stated, “Lawsuits cost taxpayers a lot of money.” On the select board’s April 26 approval of raising the Progress Pride flag, Packish said, “we should have voted no.” He added that “heartstrings were pulled,” causing him to approve it. “We took a turn down a wrong path,” he said.
Oak Bluffs resident Marie Doubleday provided emotional testimony highlighting the significance of the rich Black history deeply embedded in the essence of Oak Bluffs and Martha’s Vineyard. “Black and African American history is generally whitewashed,” in the U.S., she said, “[The African American] community here is known throughout the country … we need to show respect for what this community has done.”
Upon the approval of the flag policy as written, the select board said they intend to work on it further, and the topic of raising the Juneteenth flag will be discussed and deliberated on at a later date.
In other business, the select board approved a request to hold LadyFest in October. The vote was 3-2, with Balboni and Barmakian — the two dissenting voters — citing concerns about the effect the event will have on other Circuit Ave. businesses.
The board unanimously approved a request brought before them by Brian Ditchfield to continue the drive-in movie events at the YMCA, in addition to the unanimous approval of a business license for Knock Knock Comedy Productions, which will be hosting comedy shows and other live entertainment events at the Strand Theater.