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Title: Homeowner’s Fight Involves Gadsden Flag Tied to Tea Party
Source:
NYTIMES
URL Source: http://www.nytimes.com/2010/08/31/us/politics/31flag.html?_r=1&hp
Published: Aug 31, 2010
Author: MARC LACEY
Post Date: 2010-08-31 12:40:27 by Brian S
Keywords: None
Views: 161335
Comments: 228
LAVEEN, Ariz. — Don’t tread on Andy C. McDonel. This year, Mr. McDonel began flying a yellow “Don’t Tread on Me” flag on his roof in this unincorporated area just outside Phoenix. The historic banner — which dates to 1775, when it was hoisted aboard ships during the initial days of the Revolutionary War — has been adopted by the Tea Party movement. But Mr. McDonel said that he had unfurled the flag for its historical significance and nothing else. He notes that the banner, the Gadsden flag, has been widely used over the years and was even featured on the cover of a rock album. “Am I a Metallica fan because I’m using the flag?” he asked. This month, he received a letter from the homeowners’ association ordering him to remove “the debris” from his roof. It threatened fines if the debris (i.e., the flag) did not go within 10 days. But Mr. McDonel, 32, a logistics operation manager, has vowed to fight the order. “It’s a patriotic gesture,” he said of his banner. “It’s a historic military flag. It represents the founding fathers. It shows this nation was born out of an idea.” The Avalon Village Community Association, which sent the letter, takes a strict interpretation of the state statute that allows Arizonans the right to fly a variety of flags — the Stars and Stripes, the state flag, flags representing Indian nations as well as the official flags of the Army, Navy, Air Force, Marines and Coast Guard. The listing of acceptable flags stems from a dispute several years ago in nearby Chandler, Ariz., in which a woman with a son serving in Iraq was challenged by her homeowners’ association for flying the Marine Corps flag. State legislators intervened. The Arizona law, says the homeowners’ association butting heads with Mr. McDonel, does not give residents authorization to fly anything else on their properties. That means no pennants bearing sports team logos, no Jolly Rogers, no rainbow banners celebrating gay pride and no historic flags showing a coiled rattlesnake bearing its fangs. As Javier B. Delgado, a lawyer for the homeowners’ association, put it in a statement on the association’s Web site: “Should the Arizona Legislature expand the Community Association Flag Display Statute to include the Gadsden Flag, the Association will accommodate Mr. McDonel’s desire to display it. Bottom-line, anyone considering residing in a community association should carefully review the association’s governing documents beforehand to ensure that the community is a good fit for them.” Mr. McDonel knows the rules well since, until July, he was a member of his homeowners’ association’s board of directors. He resigned in a dispute with the board’s president and shortly thereafter received his first debris notice. That one concerned a treadmill that he had left on his porch, which he admits was a violation of the rules. His second debris warning, which came weeks after that, concerned the flag, which had been up for about six months. “If this is a grudge, it’s sad that the funds that the homeowners put into the association are being wasted on such a petty matter,” Mr. McDonel said. Mr. Delgado, whose law firm represents thousands of homeowners’ associations, denies that any dispute among board members led to the citation of Mr. McDonel’s property. “There is still the potential for dialogue on both sides,” he said, indicating that no fines had yet been levied. The homeowners’ association represents a community of tract homes in what had been a sprawling agricultural area. A survey of Mr. McDonel’s neighbors after the dispute drew the attention of the local news media revealed more concern about the television trucks that have been parking in front of his property than the flag flapping on his roof. After Mr. McDonel’s standoff was picked up by the media, the American Civil Liberties Union of Arizona jumped in on Mr. McDonel’s side, arguing that homeowners’ associations do not have the right to “hijack” the free speech rights of their members. The A.C.L.U. fired off a letter to the association on Monday that seeks a meeting with Mr. Delgado to resolve the matter without going as far as a lawsuit. “We’re urging the homeowners’ association to adopt a less limited interpretation of the statute,” said Dan Pochoda, the legal director for the civil liberties group. “The Gadsden flag meets the spirit of the law. It’s a historic military flag. Many consider it the original American flag, before the Stars and Stripes.” As for the political significance that the flag has taken on in this election season, Mr. Pochoda was uninterested, saying that Mr. McDonel’s motivation for flying the flag was irrelevant to the dispute. “We didn’t ask him,” Mr. Pochoda said. As the flag becomes more popular — it was on prominent display on the Washington Mall last weekend during a rally organized by the conservative commentator Glenn Beck — more such disputes are expected. Already, a Colorado homeowner flying the same flag is locked in a standoff with his homeowners’ association. And in Connecticut, a group of retired Marines is challenging the Capitol Police’s decision blocking the Gadsden flag from being flown over the State Capitol.
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Begin Trace Mode for Comment # 190.
#1. To: Brian S (#0)
(Edited)
The lesson here is don't join an association in which you cede your right of expression.
So you'd be okay with the HOA banning blacks? They can move to the other side of the tracks. If the 1st amendment doesn't apply, why bother with the 14th?
How are they remotely the same issue? Really...I want to see your logic here.
Civil liberties, inalienable rights, natural/God given rights. You're on the slippery slope, wanting the 14th, but not the whole 1st. Yeah, the 1st shouldn't apply to Gadsden flag flyers, just American flag burners. /s
How does that have anything remotely to do with agreeing to a standard of landscaping? They have to agree to not hold a lantern in front of their houses? What?
So a standard of landscaping, no blacks on the landscape is OK with you?
You do have a way of using twisted logic, I'll give you that.
He isn't twisting anything. He is being consistent. You are the one twisting.
Well, let me try being straightforward. No blacks on the landscaping? That's silly and violates fair housing rules and other civil rights so HOAs can't make rules like that. No lawn jockeys or garden gnomes on the landscaping, now that IS something that HOAs will likely have rules about--as well as parties on the landscaping. And, no, Stone, you can't do "anything" you want even on your property. Just try having sex on the front lawn and see what comes of that. HOAs operate by contract and are subject to state statues. As long as their mommy and daddy rules stay within that structure, they're lawful. And, you always have the right not to sign the contract and to find another place to live.
Then you think someone should be able to say no blacks in the contract? If not you can tell them to find another place to live. No that is not the way it is supposed to work. The problem is that your parents didn't teach you right. I hope you don't have any kids.
Again, you're being silly and reactionary. Contracts can't violate laws. But stupid HOA contracts can make lawful rules about controlling the appearance of the property, which doesn't include the color of the people living there. It's all about conformity. And I expressed my freedom by not signing the contract. BTW, when arguing with me, I wish you'd have the decency to keep my parents/child out of the discussion. It's irrelevant and tacky.
The constitution is the supreme law of the land. Any law that doesn't conform isn't a law. There is no law that says you can't discriminate against someone in renting selling or whatever. When you OWN property it is yours to do as you please with. Commies disagree. You must be a commie. I hope if you have kids you aren't teaching them your ignorance.
There are, in fact, several...
Apparently, for some people, the Fair Housing Act just doesn't exist.
It violates the constitution so it isn't a legitimate law. It is known as color of law. It may take money out of your pocket like law or put you in jail like law, but it is still actually color of law.
How so?
The 10th amendment.
What about it? You believe that a) there is a right to deny or disparage the inalienable right of the pursuit of happiness and b) that it lies in the 10th amendment?
I KNOW you have a right to sell your property to whomever you want to. I know that when you own property you can do what you want with it (if we had lawful govt). I am not responsible for someone Else's happiness. It would infringe on my right of pursuit of happiness to force me to sell to someone I didn't want to or to tell me what to do with my property. As long as I'm not murdering people on it. You people are weirdos. You think there is a right to murder your offspring. And you think you don't have a right to private property.
Here's a little snippet of Ohio (not my state) fair housing laws: (These laws appear to be on the books in most [if not all] of the states) In 1965, Ohio became one of the first states to enact Fair Housing Legislation. On June 30, 1992, Governor George Voinovich signed House Bill 321, which enacted changes in the classes of persons protected by the Ohio Fair Housing Law, and significantly enhanced the enforcement powers of The Ohio Civil Rights Commission. The law gives all persons in the protected classes the right to live wherever they can afford to buy a home or rent an apartment. It is unlawful on the basis of race, color, religion, sex, national origin or ancestry, disability, or familial status to: a. refuse to rent, sell, finance, or insure housing accommodations or residential property b. represent to any person that housing accommodations are not available for inspection, sale, rental or lease c. refuse to lend money for the purchase, construction, repair, rehabilitation, or maintenance of housing accommodations or residential property d. discriminate against any person in the purchase, renewal, or terms and conditions of fire, extended coverage, or home owner’s or renter’s insurance e. refuse to consider without prejudice the combined income of both spouses. f. print, publish, or circulate any statement or advertisement which would indicate a preference or limitation. g. deny any person membership in any multiple listing services, or real estate broker’s organization.
trumped by the constitution.
So...are these matters determined by the state or by the federal government? You can't have it both ways. You said it was a 10th Amendment issue, which means it comes under state jurisdiction...and the states have rules on the book covering these topics. Now, you say the states can't do this because of the constitution. Yes, we have no bananas
no no no. It is a god given right. nothing to do with state or fed govt.
Just for comparison, here's a snippet from New Mexico's Human Rights Act: It is an unlawful discriminatory practice for any person to: (1) refuse to sell, rent, assign, lease or sublease or offer for sale, rental, lease, assignment or sublease any housing accommodation or real property to any person or to refuse to negotiate for the sale, rental, lease, assignment or sublease of any housing accommodation or real property to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation; Of course, now you say that only God can make the laws and, apparently, you've got the pipeline to that connection. Meanwhile, I'll continue to believe that Human Rights are part of God's will.
trumped by the right to own private property.
You're not claiming a right. You're claiming a power. 10A does not mention any right.
Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Rights don't have to be listed, but gov powers DO. You Bush/hObama nanny statists would like to control everything, ain't gonna happen!
You know that IX is not X. Correct?
If you can't understand 9, you'll never figure 10 out.
Are you fucking stupid? I'm not the one who was promoting 10 as being applicable here. Stone was. I'm the one telling him it's not. Read the goddam thread, asshole, or sulk away; I don't care...
If you weren't so F'n stupid you'd be able to connect the dots. The un-enumerated (9th amendment) inalienable right to fly or burn flags, is passed to THE PEOPLE under the 10th amendment, not the States. IMO that's the gist of AK's argument, and the Supreme Court agrees with him. The supreme court has already declared flag burning a civil right, so if the homeowner wanted to burn a few Che Guevara and Kenyan flags while he's flying the Gadsden that'd be cool too. Flag rights are settled law, deal with it.
Dickhead...you've created an argument of which I am not even a part. Stone is claiming that the 10th amendment a) allows him to do what ever he wants and b) that because it's an amendment it trumps anything in Articles 1-VI. He's also claiming that this guy's rights are being violated even though he has agreed to live in a private association under the specific rules of the association. THAT is the argument. If you want to discuss the ninth amendment, start another thread. PS: The general right to fly a flag is protected UNDER THE FIRST AMENDMENT not the Ninth. DEAL WITH THAT.
Actually I meant the 9th. I wasn't with it yesterday. But the 10th also applies. The 9th moreso.
So, Stone, Hondo, you're both big believers in the 9th amendment, ehh? That's fine. Just realize, it's the foundation for overcoming bans on birth control and for the "right to privacy" (Roe v Wade). From http://legal- dictionary.thefreedictionary.com/9th+Amendment: Until 1965 no Supreme Court decision made more than a passing reference to the Ninth Amendment. In 1958, Supreme Court Justice Robert H. Jackson wrote that the rights protected by the Ninth Amendment "are still a mystery." Nevertheless, the dormant Ninth Amendment experienced a renaissance in Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). In Griswold the Supreme Court was asked to review the constitutionality of a Connecticut law that banned adult residents from using Birth Control and prohibited anyone from assisting others to violate this law. In the majority opinion, Justice William O. Douglas, writing for the Court, rejected the notion that the judiciary is obligated to enforce only those rights that are expressly enumerated in the Constitution. On several occasions in the past, Douglas wrote, the Court has recognized rights that cannot not be found in the written language of the Constitution. Only briefly discussed in Douglas's majority opinion, the Ninth Amendment was the centerpiece of Justice Arthur Goldberg's concurring opinion. The language and history of the Ninth Amendment, Goldberg wrote, demonstrate that the Framers of the Constitution intended the judiciary to protect certain unwritten liberties with the same zeal that courts must protect those liberties expressly referenced in the Bill of Rights. The Ninth Amendment, Goldberg emphasized, reflects the Framers' original understanding that "other fundamental personal rights should not be denied protection simply because they are not specifically listed" in the Constitution. Justices Hugo L. Black and Potter Stewart criticized the Court for invoking the Ninth Amendment as a basis for its decision in Griswold. The Ninth Amendment, the dissenting justices said, does not explain what unenumerated rights are retained by the people or how these rights should be identified. Nor does the amendment authorize the Supreme Court, in contrast to the president or Congress, to enforce these rights. By reading the Ninth Amendment as creating a general right to privacy, Black and Stewart suggested, the unelected justices of the Supreme Court had substituted their own subjective notions of justice, liberty, and reasonableness for the wisdom and experience of the elected representatives in the Connecticut state legislature who were responsible for passing the birth control regulation. The Griswold decision was the starting point of a continuing debate over the proper role of the Ninth Amendment in constitutional Jurisprudence. One side of the debate reads the Ninth Amendment to mean that the Constitution protects not only those liberties written into the Bill of Rights but some additional liberties found outside the express language of any one provision. The other side sees no way to identify the unenumerated rights protected by the Ninth Amendment and no objective method by which to interpret and apply such rights. Under this view, courts that interpret and apply the Ninth Amendment do so in a manner that reflects the political and personal preferences of the presiding judge. Federal courts have attempted to reach a middle ground. A number of federal courts have found that the Ninth Amendment is a rule of judicial construction, or a guideline for interpretation, and not an independent source of constitutional rights (Mann v. Meachem, 929 F. Supp. 622 [N.D.N.Y. 1996]). These courts view the Ninth Amendment as an invitation to liberally interpret the express provisions of the Constitution. However, federal courts will not recognize constitutional rights claimed to derive solely from the Ninth Amendment (United States v. Vital Health Products, 786 F. Supp. 761 [E.D. Wis. 1992]). By itself, one court held, the Ninth Amendment does not enunciate any substantive rights. Instead the amendment serves to protect other fundamental liberties that are implicit, though not mentioned, in the Bill of Rights (Rothner v. City of Chicago, 725 F. Supp. 945 [N.D. Ill. 1989]). After Griswold, federal courts were flooded with novel claims based on unenumerated rights. Almost without exception, these novel Ninth Amendment claims were rejected. For example, the Ninth Circuit Court of Appeals found no Ninth Amendment right to resist the draft (United States v. Uhl, 436 F.2d 773 [1970]). The Sixth Circuit Court ruled that there is no Ninth Amendment right to possess an unregistered submachine gun (United States v. Warin, 530 F.2d 103 [1976]). The Fourth Circuit Court held that the Ninth Amendment does not guarantee the right to produce, distribute, or experiment with mind-altering drugs such as marijuana (United States v. Fry, 787 F.2d 903 [1986]). The Eighth Circuit Court denied a claim asserting that the Ninth Amendment guaranteed Americans the right to a radiation-free environment (Concerned Citizens of Nebraska v. U.S. Nuclear Regulatory Commission, 970 F.2d 421 [1992]). This series of cases has led some scholars to conclude that the Ninth Amendment may be returning to a constitutional hibernation. Yet the Ninth Amendment retains some vitality. In Roe v. Wade, the federal District Court for the Northern District of Texas ruled that a state law prohibiting Abortion in all instances except to save the life of the mother violated the right to privacy guaranteed by the Ninth Amendment (314 F. Supp. 1217 [1970]). On appeal the Supreme Court affirmed the district court's ruling, stating that the right to privacy, "whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy" (Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]). Federal courts continue to rely on the Ninth Amendment in support of a woman's constitutional right to choose abortion under certain circumstances.
BTW, I mostly just wanted to point out how funny you've been with this thread in your inconsistency. First you declare HOAs and their contracts as unconstitutional. They're not. Contracts are covered by the U.S. Constitution. Then, you want to make it a states right thing (10th Amendment), saying that fair housing laws, etc. are unconstitutional. Well, even if that argument would hold water, you still wouldn't get want you want because states have their own nondiscrimination laws (the states claimed their right to do so). Then, you fall back onto the "mystery" 9th Amendment that says individuals have rights not spelled out in the U.S. Constitution and you should still have the right to do what you want (flags, discriminate, etc.). But, when courts have granted rights (like the right to privacy) that you don't approve of, then it's a bad amendment. Geez, Stone, you and the Constitution just aren't getting along lately. So sorry to hear that.
There is no right to kill babies born or unborn. How many abortions did you have liberal? Feeling a little guilty? Trying to justify your murders? Or maybe someone you know murdered their kid and you rationalized it away. Again there is no right to kill your baby. Only sickos think there is. Are you a sicko?
#192. To: A K A Stone (#190)
Or maybe someone you know murdered their kid and you rationalized it away. Again there is no right to kill your baby. Only sickos think there is. Are you a sicko? How cute. You're trying to shift the focus from the fact that your whole constitutional/states rights argument about HOAs and their idiotic contracts didn't hold water. In fact, they sank like a stone. I'm not into revealing oodles of personal details on websites, but since you seem so obsessed with my "behavior," I'll answer your tacky question. Sorry to disappoint you, zealot, I did the birth control thing very well and circumvented the need to contemplate any bigger issues. Yippee for me. However, I will also say that if I had become pregnant through rape or incest, first (right after pressing charges), I would have demanded Plan B and barring that, yes, I would have had an abortion at the earliest moment. And it wouldn't bother me for a second that people like you would label me a sicko.
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#4. To: war (#1)
(Edited)
don't join an association in which you cede your right of expression.
#5. To: hondo68 (#4)
So you'd be okay with the HA banning blacks?
#7. To: war (#5)
How are they remotely the same issue?
#8. To: hondo68 (#7)
#11. To: war (#8)
standard of landscaping?
#14. To: hondo68 (#11)
So a standard of landscaping, no blacks on the landscape is OK with you?
#15. To: Suzanne (#14)
You do have a way of using twisted logic, I'll give you that.
#18. To: A K A Stone, hondo68 (#15)
He isn't twisting anything. He is being consistent. You are the one twisting.
#22. To: Suzanne (#18)
And, you always have the right not to sign the contract and to find another place to live.
#29. To: A K A Stone (#22)
Then you think someone should be able to say no blacks in the contract?
#37. To: Suzanne (#29)
Contracts can't violate laws.
#47. To: A K A Stone (#37)
There is no law that says you can't discriminate against someone in renting selling or whatever.
#59. To: war (#47)
There are, in fact, several...
#62. To: Suzanne (#59)
Apparently, for some people, the Fair Housing Act just doesn't exist.
#72. To: A K A Stone (#62)
It violates the constitution so it isn't a legitimate law.
#73. To: war (#72)
How so?
#78. To: A K A Stone (#73)
#80. To: war (#78)
#84. To: A K A Stone (#80)
I KNOW you have a right to sell your property to whomever you want to. I know that when you own property you can do what you want with it
#85. To: Suzanne (#84)
#89. To: A K A Stone (#85)
trumped by the constitution.
#91. To: Suzanne (#89)
So...are these matters determined by the state or by the federal government? You can't have it both ways. You said it was a 10th Amendment issue, which means it comes under state jurisdiction...and the states have rules on the book covering these topics. Now, you say the states can't do this because of the constitution.
#95. To: A K A Stone, war (#91)
no no no. It is a god given right. nothing to do with state or fed govt.
#97. To: Suzanne (#95)
#106. To: A K A Stone (#97)
#138. To: war (#106)
(Edited)
10A does not mention any right.
#139. To: hondo68 (#138)
#141. To: war (#139)
#142. To: hondo68 (#141)
(Edited)
#166. To: war, A K A Stone (#142)
(Edited)
Are you fucking stupid?
#167. To: hondo68 (#166)
(Edited)
#169. To: war (#167)
#183. To: A K A Stone, war, hondo68 (#169)
Actually I meant the 9th. I wasn't with it yesterday. But the 10th also applies. The 9th moreso.
#186. To: All (#183)
#190. To: Suzanne (#186)
Replies to Comment # 190. There is no right to kill babies born or unborn. How many abortions did you have liberal? Feeling a little guilty? Trying to justify your murders?
End Trace Mode for Comment # 190.
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