Citizen Petition Article: Old Burial Ground Flags policy

Above: Controversy around at least one of the above flags prompted a public petition in 2021 that failed to compel the Select Board to remove it. This week, Town Meeting voters will be asked to take a position on the issue. (photo by Beth Melo)

One of the Articles that Special Town Meeting voters will decide this Thursday night is whether to urge the Select Board to limit the flags in the Old Burial Ground to the American flag.

The non-binding Citizen Petition Article seeks the removal of historical military flags, long flown in the cemetery by Southborough veterans — including one that was publicly called out last year as a symbol used by some of the insurrectionists at the Capital on January 6, 2021.

The Article is framed as solving a legal issue about the potential for other groups to demand their flags be flown in the future. But that legal argument has been questioned and the focus of vocal Article supporters is more focused on the appropriateness of the currently flying flags.

Flags include the Gadsden Flag which has been called a racist symbol by some vocal residents. That label has been hotly contested by representatives of the veterans who defend its history.

At the heart of the argument between opponents and supporters of the flag are questions about whether the flag should be removed due to voiced concerns about problematic history and linked ideologies. Representatives for veterans have argued that the Town shouldn’t let it be successfully coopted as a hate symbol by treating it as one.

Some flag opponents publicly argued that even if officials don’t see the flag’s history and intent as racist, the public offense it causes is enough to trigger its removal. There have also been some arguments over whether the site is appropriate for flying any military flags.

Further complicating arguments is a contentious personal history between some flag defenders and a vocal opponent (though he isn’t one of the Article organizers).

Below are highlights of recent and prior public discourse on the controversy.

Citizen Petition Article and the legal arguments

Article 12 asks the Select Board to restrict flags on poles in the Old Burial Ground to the single official flag of the United States of America. (It does allow for the mini flags placed each year as individual grave markers at veterans’ graves.)

The Article’s summary explanation states:

This citizen’s petition seeks to limit the placement of flags in the Old Burial Ground to only the American flag, consistent with preservation guidelines for municipally owned burial grounds and cemeteries. This policy follows the recent unanimous U.S. Supreme Court decision regarding free speech rights under the First Amendment. The Court found that municipalities cannot selectively allow some private groups to fly flags on public property while denying other groups (Shurtleff v. City of Boston, 2022).

Debbie DeMuria told the Select Board in recent meetings that she pursued the Article in response to learning about the Supreme Court’s ruling on Boston’s policy for flying flags. The Court ruled that given the city’s history of flying flags for various groups that requested it and lack of official policy for deciding which flags to fly, it violated free speech protections by refusing to fly the flag of a Christian group. (You can read the Globe’s coverage of the issue here.)

DeMuria argued that since the Town doesn’t have a policy for flying flags, it could be legally compelled to fly flags for other groups upon request. By limiting the flag in the historic cemetery to the American flag, the Town would avoid the liability.

At their last meeting, Select Board member Andrew Dennington referred to the late submission of the Article as limiting the public discourse prior to Town Meeting. DeMuria referenced emails she sent the Board earlier in the summer, unsuccessfully pushing them to act before she decided to bring the issue to voters.

At the October 3rd Select Board meeting, DeMuria said she believed the Board’s position is problematic because they are allowing the free speech of one group (veterans), while ignoring others who find one of the flags offensive. She followed that it was only matter of time till they get a request from another group. (Scroll down to read about a public “request” issued this week to do just that.) She opined that if they have to allow one group they have to allow others.

The Select Board sought a legal opinion from Town Counsel on the liability issue. Counsel advised that the Town doesn’t have a legal issue that the Article solves. Though, the opinion also noted that the policy sought wouldn’t create a new legal problem:

the Town’s current practice is legal and that Article 12 does not address or remedy any inconsistency with the Shurtleff decision. Accordingly, we find the commentary appended to the Article to be incorrect and, in some respects, misleading. That said, we also find that the article, as drafted, does not propose an action that is illegal. While such Article is advisory only, the Town is free to adopt a policy that limits flags flown in the cemetery to the American flag.

Controversy History – 2021 Debate and Public Petition to replace the Gadsden Flag

In March of 2021, then-Historical Commission Chair Michael Weishan brought forward concerns about the military flags in the Old Burial Ground. He told the Commission that he had been contacted my multiple residents who assumed the Commission oversaw the OBG. He claimed that residents were upset by seeing the same images flown at the cemetery as they had seen flown at the insurrection attempt at the Capital on January 6th.

Weishan told his Commission that his research found a problematic history related to two of the flags: the white Culpeper Minutemen flag from Virginia and the yellow Gadsden Flag from South Carolina (which ultimately drew the most public opposition). He said the Gadsden flag had been associated with the pre-Civil War call to secede from the Union. He suggested the Town replace it with the Continental Colors, a Revolutionary War flag that he believed some of the veterans in Southborough and the area would have served under.

At that time, the controversy blew up with distractions over the interactions between Weishan, veterans, and the Select Board Chair. There were heated discussions and accusations about what was said by who on the call Weishan made to VFW Commander Steve Whynot and the follow up call Healey made to Weishan.

Both that spring and this fall, there were public insinuations that Weishan invented the anonymous complaints and “ginned up” the controversy. (A charge he has vehemently denied.)

However the issue began, Weishan wasn’t alone in seeking the Gadsden Flag be removed. The Historical Commission voted unanimously to request its removal. There were over 250 signatures to the online petition started by Claire Deans-Rowe (and more than 100 additional since) asking the Board to remove the flag. And multiple members of the public advocated at the May 4, 2021 Select Board meeting to have the flags removed.

The Select Board instead sided with Whynot and American Legion Commander Dan Kolenda who told them that Town veterans were adamant about continuing to fly the flags. The flag’s origins were defended by Healey with references to origins during the Revolutionary War and being flown on naval ships after 9/11. 

The flag was created by a Revolutionary War Colonel. Petitioners pointed out:

Gadsden was a slave owner and trader who’s trading site, Gadsden’s Wharf, saw as much as 40% of slaves pass through it. Nowadays, the flag is displayed at radical rallies, and most notably flown prominently in the takeover of the Capitol Building by extremists on January 6th alongside those of the Proud Boys, a well known neo-fascist organization.

At the meeting, Pam Saitta and Sally Watters argued that 95% of the people buried in the cemetery weren’t veterans, and none served under the military flags flown. (The cemetery also included pre-revolutionary war colonists, and loyalists.) Watters said that following January 6th, some veterans she spoke with believed the Gadsden flag was no longer appropriate to fly. Arguments were made that other flags could be found to better represent the Town.

Whynot and Kolenda explained that the flags had been flown and refreshed by Veterans for decades. In a message they sent to Town veterans and shared with the Board, they wrote:

No act of a misguided few can suddenly cause an historic flag of hundreds of years to suddenly lose its historical significance. The flags at our Old Burial Ground are historic, with many dating back hundreds of years. They should remain exactly where they are.

In another email with links to information about the flag, Whynot wrote, “Let’s hope the make the right decision and stop this madness of culture erosion.”

At their May 10, 2021 meeting, the Board opted to take the position that the problem wasn’t the flags, it was public perception of the flags. Instead of removing the flags they would seek to have historically accurate information about the flags posted at the Old Burial Ground to inform the public of both sides of the issues and other information about the burial ground and its history. (To my knowledge, nothing has been publicly done about that since.)

More Recent Debate

At the September 20th Select Board Meeting, several residents turned up in response to an agenda item about assigning review of an Old Burial Ground flag policy to the Historical Commision.

Chair Kathy Cook explained that to respond to the claim in the Citizen Petition Article that the Town lacks a policy about flying flags, they could create one. Cook (who wasn’t on the Board in spring 2021) suggested that the Historical Commission could make a recommendation about what was appropriate for the historic cemetery.

Select Board member Lisa Braccio said she would want to give equal footing to veterans in the process. Cook responded that veterans could participate in Historical’s meetings.

That idea was objected to by Whynot and Kolenda who indicated that the Commission’s finding was a foregone conclusion. Other residents who argued alongside the veterans included Marc Cascio who signed the Citizen’s Petition. He made clear that he had believed he was keeping out potential flags of random groups. He didn’t realize that it called for removal of the military flags.

Adam Phaneuf, who told the board he helped dig the flagpole holes as a kid 30 years ago, noted that every Memorial Day a large group of residents salutes the flags in the cemetery. He followed that they obviously don’t find the flag offensive.

On the other side of the issue, Rebecca Deans-Rowe argued that some of those buried in the cemetery may be Quakers and others that would be offended by having military flags over their graves. She believed that individual markers were more appropriate to veterans and the overarching flag should only be the U.S. flag.

DeMuria noted that other area cemeteries don’t have military flags, and many lack any flags. She pointed out that the Town already has nearby veteran memorials.

Select Board members decided that it made more sense to wait for Town Meeting voters to have their say then to hope a plan to form a policy would pre-empt the Article.

Making the hyphothetical real

This week, Weishan issued a public letter to the Select Board. While the ultimate goal is to lobby for support of the upcoming Citizen’s Petition Article, the means he chose was to make real DeMuria’s argued possibility that a group would request flying different flags that some officials may wish not to fly. 

The letter begins:

I have been asked to be the spokesman for a large and growing group of Southborough citizens who have become increasingly concerned about the views expressed by several members of your board, after ignoring repeated citizen requests to remove flags placed by certain private individuals in the Old Burial Ground. These individuals have chosen images that many of us find offensive, justifying their selection by arguing that these flags are somehow historically appropriate to Southborough—an assertion refuted through extensive research by members of both the Southborough Historical Commission and the Southborough Historical Society.

Whatever the original purpose or meaning these flags might have once held, they have now become widely associated with the January 6th insurrection, white supremacist groups, and others who believe that government should be controlled solely by white Christians.

He goes on to request the flying of six different flags in the OBG, with reasoning as to why they would “better represent the history and diversity of Southborough today”. The flags represent: the Union Jack, Gay Pride, Peace, Women’s Suffrage movement, Black Lives Matter, and the United Nations. 

Alternatively, he notes, the Board could support DeMuria’s “excellent” Citizen’s Petition.