Bill to make flying U.S. flag always legal loses steam

By The Associated Press
05.11.05

NASHVILLE, Tenn. — People in Tennessee don't have the right to hang an American flag in their yard or from their balcony if doing so runs afoul of neighborhood rules, the attorney general said yesterday.

Attorney General Paul Summers’ opinion came in response to a bill that would have made flying the American flag always legal, even in neighborhoods or buildings with restrictive covenants.

Summers said the bill was likely unconstitutional on three fronts.

First, he said, it tampers with existing contracts between homeowners and neighborhood associations. Second, it probably violates the right to free speech by picking the American flag over other flags or messages people might want to display. Also, Summers said, it may be construed as a move by the state to interfere with private-property rights without compensation.

Sen. Mae Beavers, the Mt. Juliet Republican who is carrying the bill, said she was perplexed by Summers' decision.

"When you can't even put a flagpole up in your front yard, I think that's pretty bad," she said.

It's not the first time Beavers has pushed for the law.

In 2001, a Franklin man was told by a homeowners association to tear down his flagpole. Neighbors said it created an unsightly view and ran contrary to the community's lengthy list of covenants.

Ever since, Beavers has been trying to exempt the American flag from such covenants.

Even though she has added language that would allow neighborhoods to restrict the height of flagpoles or say the flags couldn't be so large they fly over a neighbor's yard, cautious lawmakers have moved slowly on the issue.

Critics are still leery of interfering with neighborhood rules or passing a law that could inadvertently allow someone to hang a 100-foot flag from a condominium balcony.

"I think they are giving a lot more emphasis to covenants in homeowners associations then they should," Beavers said. "And we're talking about flying the U.S. flag, we're not talking about putting up buildings that are against the covenants."

With the attorney general's opinion in hand, the issue will likely be put to rest at least until next year.

"This is pretty clear-cut that it is unconstitutional," said Rep. Joe Fowlkes, a Cornersville Democrat who asked for the opinion.