Judge OK's Confederate Flag At Point Lookout Cemetery
By Ed Ballam
BALTIMORE, Md.

A federal judge ruled that a Confederate battle flag may fly at the Point Lookout Cemetery in Maryland, stating that the government's attempt to prevent its display is impermissible censorship and an abridgement of First Amendment rights of free speech.

The government had argued that the Confederate flag is a racially divisive symbol of intolerance, but William M. Nickerson, of the U.S. District Court in Maryland, who made the ruling, said that no "rationally thinking person" would construe it as that, in its context at a Confederate burial ground.

The 26-page ruling, which is a final order, in favor of the plaintiff, Patrick J. Griffin III of Darnestown, Md., was issued on Jan. 29 by Nickerson. (See The Civil War News December 2000 for details of the suit.)

The judge said that the government's attempt to prevent the flying of the flag "clearly demonstrates that [the government is] choosing, and advancing, the viewpoint of those offended by the flag over the viewpoint of those proud of the flag. äThis preference is not viewpoint neutral and is, therefore, impermissible."

He further stated that the prohibition of the flag display is an attempt to regulate speech that the government finds offensive and such censorship is impermissible under the terms of the First Amendment. "We're thrilled," said Griffin's lawyer, Steven Campen of Frederick. "The judge's analysis of the issues was so thorough and so good, there's no way an appeals court would overturn it."

The Civil War News wasn't able to reach Griffin for comment at presstime, but he told Washington post reporter Steve Vogel, "That's just wonderful news, wonderful news for my Confederate ancestors, and I guess everybody's Confederate ancestors."

Last fall, Griffin, who is the immediate past international commander of the Sons of Confederate Veterans and had an ancestor who was held at the Point Lookout prisoner of war camp, filed a lawsuit against the U.S. Department of Veterans Affairs (VA) and the National Cemetery Administration (NCA)

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Griffin filed after his request to fly a full-sized, historically accurate Confederate flag on its own pole in the Confederate cemetery on a daily basis was rejected by Point Lookout administrators.
Griffin alleged the government abridged his constitutional rights to free speech by severely restricting the daily display of the battle flag at the cemetery where more than 3300 Confederate prisoners of war who died at Point Lookout are buried in a mass grave.

Judge Nickerson agreed and granted Griffin's request for declaratory and permanent injunctive relief. Nickerson ruled that Griffin would be allowed to fly a full-sized, historically accurate Confederate battle flag between 9 a.m. and 6 p.m. daily, provided it was at least three feet lower than the U.S. flag, placed near the federal or state monument on the site, was paid for and maintained with private funds, and that private support would be indicated on a sign.

Nickerson rejected one of the government's main arguments, saying that the flying of a Confederate flag at Point Lookout should not be construed as a symbol of racial divisiveness and intolerance. Point Lookout Cemetery, Nickerson noted, is the burial ground for thousands of Confederate soldiers who died while fighting under the Confederate flag

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"The context of the display militates against any potential that a prohibited message of racial intolerance could be inferred," Nickerson wrote. "As already noted, in the context of Point Lookout, a cemetery established for the sole purpose of honoring Confederate dead, the only rational assumption is that the flag is being displayed because it is the flag under which those buried at Point Lookout fought and died. Additionally, the proposed subordinate positioning of the Confederate flag to the U.S. flag and its positioning in the shadow of other monuments, simply presents an unpretentious recognition that those who are buried there died as members of the Confederate Army."

During the Nov. 27 hearing, lawyers for the VA and NCA had argued that the government has a "compelling interest in not conveying the message of racial intolerance and divisiveness that some persons reasonably perceive in the Confederate battle flag."

Nickerson responded to the argument saying that the defendants in the case, the Veterans Administration and National Cemetery Administration, "overlook that the flying of the Confederate flag in an all Confederate cemetery affirms the statutory mandate that national cemeteries be 'shrines as a tribute to our gallant dead."

Given the discrete context of [Griffin's] proposed display, along with the absence of any complaints during the prior years encompassing a similar display, one is hard put to imagine a rationally thinking person attributing a racial or discriminatory message to it."

The Confederate flag was removed by park administrators after someone asked them why the U.S. flag was flown at the Confederate cemetery. Griffin filed suit after his requests that it be replaced were denied

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Point Lookout National Cemetery was created by Maryland in 1870 when the remains of the Confederates who died at the P.O.W. camp were moved from individual graves to a "better location" in a mass grave about a mile inland. Maryland asked that the federal government take control of the cemetery in 1910 and it became a national cemetery. The government erected an 85-foot monument at the site and put the names of 3,384 known Confederates buried in the mass grave on bronze tablets. Nickerson declined to rule on one important aspect of Griffin's argument, and that was that the NCA's flag policy was, on its face, unconstitutional and, therefore, impermissible. The judge said that issue must be brought before the Federal Circuit Court of Appeals.

Because the flag policy was not deemed unconstitutional, attorney Campen said the far-reaching effects of Nickerson's ruling were somewhat muted. In terms of case law, Campen believes it has far-reaching effects in that other plaintiffs concerned with flying the Confederate flag in Confederate cemeteries could also file suit and, given Nickerson's ruling, would likely stand a good chance of winning.

Nickerson's ruling was specific to Point Lookout, Campen noted, so its implications for other cemeteries and other forms of display are not directly connected. Nonetheless, it is still an important decision, he said.
As for the constitutionality issue, Campen said he and Griffin have already filed paperwork in the Federal Court of Appeals, Fourth District, seeking a ruling on whether the entire flag policy is unconstitutional, as he and his client assert. And, as far as appeals, Campen said the government will have 30 days from the date of the ruling in which to file the necessary paperwork if it chooses to appeal.

"I don't see any rationale for the flag policy in the first place," Campen said. "It remains to be seen if they will waste any more of the taxpayers' money trying to defend it. The Fourth Circuit Court of Appeals is not going to overturn Judge Nickerson's ruling."

Government officials could not be reached for response at presstime. Campen said that he would be in contact with the VA and NCA's lawyer, Scott Simpson who works for the U.S. Department of Justice, to determine if an appeal will be filed, or if negotiations on flagpole placement could begin.

"Mr. Griffin would like to put the flag up as soon as possible," Campen said. "There will have to be an agreement about where to place it and then it will have to be anchored in concrete, so there are some technical issues as well. äMr. Griffin is very anxious to get the flag back up at Point Lookout."