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Memorial Day and Foreign Flags

By Mike Diederich, Jr.

I confess to feeling patriotic emotions arise when I see the American flag unfurled.  Being a veteran of two combat zones reminds me of the Americans who have fought and died under that banner.  We will see the flag everywhere this Memorial Day weekend. 


National flags provoke emotion.  I suspect it is a near universal sentiment, at least for citizens of the world who are patriotic toward and love their own nation, and with it, their own flag.


But should Americans be flying other nations’ flags?


It is our right, of course, to do so.  The federal and state constitutions both protect freedom of expression.  Americans often display another nation’s flag because of pride in their ethnicity, ancestry or heritage.  Other displays may be ambiguous or have mixed motivation. For example, some Americans may fly the Confederate flag as a remembrance of their love for the South’s cultural heritage, while others may do so as a cultural and political statement, and others as a protest.  Americans who respect LGBTQ rights may display the Rainbow or “Pride” flag, while some who support law enforcement (except when defending the Capitol) fly a blue striped American flag.  


Fortunately, few Americans display a Nazi or Klu Klux Klan flags, yet that is their constitutional right under the First Amendment.  See, e.g., National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977).


There are some rules for flying the American flag.  The United States Code states at 4 U.S.C. § 8(a) that “[t]he flag should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property.”  (Supreme Court Justice Samuel Alito and his wife apparently need to brush up on their knowledge of this federal statute.)  Federal statute also provides at Title 4, § 7 that:

“No person shall display the flag of … any other national … flag equal, above, or in a position of superior prominence or honor to, or in place of, the flag of the United States at any place within the United States ….”


I will return to this provision in a moment.


Recently, many Americas have displayed the Ukrainian flag, as a showing of support for Ukraine and against the Russian war of aggression.  Even more recently, many Americans have been displaying the flag of either Israeli or the Palestinian Authority, as a show of support for the Israeli people, the Palestinians, the State of Israel or the aspirational State of Palestine, or related reasons. 


The First Amendment and New York State constitution protect all of the above displays of the flag (perhaps including Justice Alito’s misstep).


===============


In Rockland County, however, we are seeing something new.  Instead of citizens exercising their individual constitutional rights, we find local municipalities (specifically, the towns of Clarkstown and Ramapo) purporting to exercise a right not expressly found in either the state or federal constitution, namely, a purportedly unfettered right of local government to speak, and specifically, to speak by flying the flag of a foreign nation.


From what I have seen, it appears both Clarkstown and Ramapo have displayed the Israeli flag at an “equal position [of] honor to the flag of the United States.”  In so doing, they are in violation of federal statute, namely, 4 U.S.C. § 7, quoted above


New York statute has something to say on the subject.  Specifically, N.Y.S. Public Buildings Law § 141 states that:

“It shall not be lawful to display the flag or emblem of any foreign country upon any state, county or municipal building….” 


From news articles, it appears that the Israeli flag has been displayed “upon” Ramapo Town Hall.


Moreover, both the State and Federal constitutions prohibit the “establishment of religion.”  One might argue that since Israel might be viewed as a “religious” nation, and the Star of David obviously being a religious symbol, that display of the Israeli flag by local government promotes Judaism and the religious state of Israel.  At least some people might view it as such, as has the ultraorthodox Jewish plaintiff in a case recently filed against the Town of Ramapo, Leibish Iliovitz v. Michael Specht and Town of Ramapo.  


Could objection to the Israeli flag being placed on public property be viewed as anti-Semitic?  What if it were the flag of the Vatican?  Or the Star and Crescent found in many nations’ flags.  Is the flag a national or a religious symbol? This is in the eye of the beholder.  But why should local governments be supporting a nation or a religion?  The wisdom of Public Buildings Law § 141, enacted in 1909, is that prohibiting all foreign flags avoids creating controversy about supporting a foreign nation or a religion.


Besides the federal and state statutory and potential constitutional restrictions on flag display described above, a more fundamental question is whether a local government (or State government, for that matter) should ever be displaying the flag of a foreign nation, with the limited exception of honoring a foreign dignitary.  Common sense would incline many Americans to think it unpatriotic to honor a foreign flag in the same manner as our national flag.  We discussed the Establishment Clause issue above.  What other constitutional interests may be involved?


First, local governmental display of one foreign nation’s flag might be seen by some as a display of loyalty or allegiance of some sort towards that for nation.  This seems problematic on many levels, beginning with the local governmental officials’ oath to support and defend the Constitution of the State of New York and of the United States.  Do local officials have the legal authority to declare local governmental support-- and by extension community support – for this or that foreign nation?  I see no such authority given to local government in the State’s “home rule law.”[1] 


Second, might this be seen as diluting allegiance to the state and national government – these United States of America? Our system of government requires allegiance, with the guarantee of a “republican form of government.”[2] Is it within local government’s province to express opinions supportive of other systems of government? Or foreign policy?


Third, will the display of a foreign nation’s flag suggest that local citizens who disagree will not be treated in the same manner, or with the same respect and dignity, as those who agree?  What will a Ramapo citizen of Palestinian heritage think when attending a planning board meeting where the flag of Israel’s display?  What will a Clarkstown citizen of Russian heritage think when attending a zoning board meeting where the Ukrainian flag is displayed? 


Fourth, will the display of a foreign nation’s flag impair local citizens’ ability and willingness to petition their local government for redress of grievances, if the grievance in any way relates to support or opposition to the foreign nation being honored by the display of its flag? A member of the Satmar Hasidic community is challenging Ramapo’s display of the Israeli flag.  Will Satmar residents be able to claim that their grievances are being ignored by, say, a Ramapo planning or zoning board, because of the Satmar opposition to the display of the Israeli flag?  Will Ramapo be inflicting a self-created wound on itself, liability wise, if it is seen as favoring one ethnic or religious group over another by allowing the display of a foreign flag?


In sum, the display of a foreign nation’s flag by local government is problematic.  A town or village’s display of the flag of, say, Ireland or Japan, may be viewed as innocuous, as may the display of any nation’s flag temporarily for a visiting foreign dignitary.  Yet the towns of Clarkstown and Ramapo are not displaying the flag of Israel as it might a bed of flowers.  Rather, it is displaying the flag of Israel as a political statement—indeed, a Proclamation—in support of a country and a cause with which there is not universal agreement by the local citizenry.


If one contentious foreign flag is allowed, where does the local government draw the line?


In our polarized and often hyper-partisan nation, one person’s cause is another person’s nemesis.  Individual Americans have the right to express their opinions.  But I question whether local government has the right to express opinions far beyond the scope of local governance and home rule powers.  And what happens if the opinions of local officials become extreme?  We can hypothesize provocative examples: The display of a Confederate flag?  Or an upside down American flag or an Appeal to Heaven Flag, as Justice Alito did.  Or God forbid, a Trumpist flag placed side-by-side with a Nazi flag alongside a blue stars and stripes flag, and perhaps with an X’d out Pride flag? 


The Serve Rockland Civic Association (SRCA) is considering intervening in the federal lawsuit that has been filed by a Satmar Jewish man against the Town of Ramapo.  Although the SRCA has been highly critical of the Satmar sect regarding its non-education of its children, SRCA is largely in agreement with the Satmar plaintiff in this case.  However, we would like your opinion, and if we decide to intervene in the pending lawsuit, your support.


We request you post your comments or, in confidence, email your comments, your support, or your disagreement to Mike Diederich at Help@DiederichLaw.com

                                                Michael Diederich, Jr.   copyright 2024


[1] See, N.Y.S. Constit., Art. IX, § 2(c) and  N.Y.S. Municipal Home Rule Law, §§ 10 & 11.

[2] See, Guarantee Clause, U.S. Constit., Art. IV, § 4.

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