By Lanier Saperstein
I have known Mayor Josh Cohn since 2005 when we worked together at a law firm in New York City. Josh is a smart, thoughtful person with a keen sense of humor and, before retiring from private practice, was one of the country’s leading derivative lawyers. Being the simple litigator I am, I recall quizzing Josh about the esoteric world of derivatives while we rode Metro-North together. Josh always was patient with me, and he had a knack for explaining tough legal issues in a way that even I could understand. Josh knew his stuff. He was thorough and careful. If he knew something, he’d tell me. Equally, if he was unsure, he’d tell me that too.
So, imagine my surprise when I read a series of articles claiming Josh and the City Council were dragging their feet over raising the gay pride flag in front of City Hall, all under the guise of needing to check the law first. I was surprised at the stir because Josh’s approach was simply in keeping with the careful and thoughtful person I know.
I have flown the rainbow flag on my lawn, and I support raising it over City Hall. I have the right to do the former under the First Amendment, but does the City have the right to do the latter? If the City flies the gay pride flag, must it then honor a request to fly flags that supporters of gay rights might not like? These are tricky constitutional issues. I recognize that Texas, Boston and Pleasant Grove City, Utah have made similar gestures, whether it’s raising or refusing to raise a flag, or erecting or refusing to erect a statue.
They also have something else in common: they all got sued. So, I support Mayor Cohn’s decision to engage a First Amendment attorney to ensure the City does not get hit with a lawsuit that will drain our coffers, siphoning money away from our roads, sewers, and fire trucks.
In my opinion, the City can fly the rainbow flag under the government speech doctrine, while retaining the right to deny requests to fly other flags it might disagree with. But the constitutional issues cannot be dismissed with the proverbial wave of the hand. Indeed, the most recent U.S. Supreme Court decision on the subject was split 5-4. It cut across ideological lines with an unusual coalition of conservative and liberal justices on either side of the issue. That suggests to me reasonable minds can — and do — differ.
I heard that the City, after becoming sufficiently comfortable with the current state of the law, will fly the rainbow flag this month. I hope during these days of division and rancor, however, that we can all agree it makes sense for the City to do its homework. It’s what we tell our kids after all.
- Lanier Saperstein