PHOENIX — Some flags matter more than others, Arizona lawmakers have decided.
On a party-line vote Thursday, the House agreed to allow residents who live in communities governed by homeowners associations to fly the Betsy Ross flag, regardless of existing rules. That’s the flag that existed at the time of the American Revolution, with 13 stars in a circle along with the still-existing 13 stripes.
That flag gets added to a growing list of flags state lawmakers say are exempt from HOA rules. Among them is the current U.S. flag, the state flag, a flag remembering prisoners of war and the Gadsden flag, the one with the coiled rattlesnake that reads “don’t tread on me.”
But the 31-29 vote occurred only after GOP lawmakers rejected a bid by Rep. Athena Salman, D-Tempe, to conclude that homeowners — even those in HOAs — have a First Amendment right to fly whatever banner they want.
Lawmakers have been fighting for years about a balance between the powers of HOAs to control what occurs within their boundaries versus the rights of individual homeowners.
In prior years, for example, the Legislature has voted to permit residents to put political signs on their lawns, even if rules prohibit such displays. Lawmakers also said associations can’t keep kids from playing in the privately owned streets and homeowners can even place signs in the middle of those streets warning motorists that there may be children present.
And then there’s the issue of what flags can be raised.
It started out with permission to fly the American flag.
Since then, there have been a series of additions. So HOA residents can fly the state flag, the flag of any Arizona Indian nation, the Gadsden flag, flags representing first responders, flags of any branch of the military, the POW/MIA flag and, most recently, a blue star flag representing that the family has someone in the military service, and a gold star flag representing someone who had died while serving.
To that, SB 1049 would add the Betsy Ross flag.
At a hearing earlier this year, Sen. John Kavanagh, R-Fountain Hills, told colleagues the legislation is designed to deal with HOAs who have placed unreasonable restrictions on which version of American flags residents can display despite existing laws that he said allow the flying of all versions of the American flag, current or historical.
On Thursday, Salman said that’s all well and good.
But she said it just doesn’t go far enough. So Salman proposed what she called her “all flags matter” amendment.
“If we’re going to preempt homeowners associations, and we’re going to start allowing for flags, it is not our job to decide what flags the government favors, what speech the government says is OK, and what speech or flags we don’t,” she said.
Sen. Alexander Kolodin, R-Scottsdale, said she’s not wrong.
“I don’t think the Legislature should be in the business of choosing what flags homeowners associations are going to display,” he said.
He was not alone. In fact, Kavanagh actually sponsored SB 1034, a separate measure that would have done exactly what Salman was proposing.
Only thing is, Kavanagh could not convince Sen. Jake Hoffman, R-Queen Creek, who chairs the Senate Government Committee, to give that bill a hearing. So he decided to go with the scaled-back version dealing with the Betsy Ross bill, a form of legislation that Hoffman was willing to hear.
Hoffman did not immediately respond to queries about his decisions.
On Thursday, Salman told colleagues that determination by Hoffman should not keep them from considering and approving the more liberal version. But that was shot down at Kavanagh’s request.
Kavanagh told Capitol Media Services he feared that the Senate would not have concurred with the changes and his entire bill would die. So he told House GOP colleagues to vote against it to keep the rest of SB 1049 alive.
Still, Kavanagh said, that doesn’t preclude a similar attempt — but just not this year.
“I don’t think homeowners associations get to override the First Amendment,” he said.
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