Rainbow crosswalk could be legal headache for Bellingham

Pride symbol reopens free-speech debate
June 5, 2023 at 5:41 p.m.
Updated June 6, 2023 at 12:34 p.m.
A banner on display in downtown Bellingham on June 5 honors Pride Month. The city plans to paint a rainbow design on a downtown crosswalk as a further show of support to the LGBTQ+ community, despite legal concerns.
A banner on display in downtown Bellingham on June 5 honors Pride Month. The city plans to paint a rainbow design on a downtown crosswalk as a further show of support to the LGBTQ+ community, despite legal concerns. (Ralph Schwartz/Cascadia Daily News)

Staff Reporter

A city work crew will transform a crosswalk in downtown Bellingham into a Pride rainbow later this month. City attorneys worry this could open the door to other types of expression officials might find less agreeable.

The city council voted unanimously June 5 to accept Mayor Seth Fleetwood’s proposal to paint a rainbow over a crosswalk on Cornwall Avenue, halfway between Holly and Magnolia streets. The familiar crosswalk pattern won’t be drastically modified. The usual white bars will simply be replaced by a spectrum of rainbow colors, to represent the city’s support for the LGBTQ+ community.

But the paint job — actually, layers of thermoplastic applied with a torch — might not be all that simple, legally speaking. The idea for the rainbow crosswalk came from a property owner on the block, city attorney James Erb told the council.

In that case, would the rainbow symbol on Cornwall Avenue count as government speech and a straightforward expression of the city’s values, or does it open up a public forum, where free-speech rights would apply?

“The record makes it pretty clear that this is not government speech. It is speech that was proposed by an abutting property owner to the right of way,” Erb told the council.

“Who is the speaker, for constitutional purposes?” Erb added. “If it’s a public forum, we cannot discriminate based on content or viewpoint at all.”

The city was in this predicament last summer. A year ago, the U.S. Supreme Court ruled against the City of Boston, after the city was sued for refusing to fly a Christian flag outside city hall. The ruling went against the city because it had accepted other groups’ requests to display special flags at city hall but rejected the Christian group’s flag.

Boston paid $2.1 million to a Christian legal organization to settle the case.

The Bellingham council unanimously passed a resolution in June 2022 making it clear that flags flown by the city are “government speech” expressing only the views of the city and not open to public input. 

While street pole banners aren’t mentioned in the ordinance, Erb said the Pride banners that line Holly Street this time of year are a similar form of government speech.

The 2022 resolution says the city council will only consider proposals for commemorative flags that come from the mayor or a council member. The rainbow crosswalk came from the mayor, through a community member.

“You have to recognize, we’re opening the door,” city attorney Alan Marriner told council. “You may have some other proponents of proposed artwork, that this council doesn’t agree with, that can make a claim that we should be allowed to put that artwork on the crosswalks.”

City officials intend to adopt a formal policy on streetscape designs in the coming months. In the meantime, at least one council member isn’t concerned about street-art speech getting out of the city’s control. 

“The city is not required to be neutral. We take value positions all the time,” council member Michael Lilliquist said. “We already control the rights of way and their uses. ... We should just simply make it very clear we’re continuing to control those for public purposes, not creating a public forum.”

This story was updated at 12:34 p.m. June 6 with the city council's final vote and additional quotes.

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