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Public Dialogue on Confederate Flag in Elmwood Cemetery

photo of Confederate Flag on display at Elmwood CemeteryWhat are your thoughts about the Confederate flag flying in Elmwood Cemetery? 

Like many cities in the Southeastern United States, the City of Charlotte has been confronted with a potentially divisive issue about a Confederate flag flying on public property in this case, a visible, historically significant cemetery where many Confederate soldiers are buried.  

While officials do not know when the flag was first erected or by whom, we do know it appeared sometime in the past 20 years in a section of the cemetery that houses Confederate soldiers and is maintained by a historical preservation society that mows grass, plants flowers, and otherwise pays tribute to the soldiers buried. 

The Charlotte City Council reported complaints from residents in neighboring areas regarding the appropriateness of the flag's presence on public property, and referred the issue of the Confederate flag flying in Elmwood cemetery to the Charlotte-Mecklenburg Community Relations Committee (CRC) for public input. The following is a brief summary of the information that will be shared at a public dialogue on October 19, 2004, from 6:30 8:30 pm at the Charlotte-Mecklenburg Government Center, Room 267.

We encourage you to read through the information, and share your input on the questions that follow.  The CRC will use the input received through the website, mail, phone calls and public dialogue to develop recommendations for the City Manager, who could use them to develop policy on flags in public cemeteries, or to advise and make recommendations to the Charlotte City Council.

Legal Context
Provided by Anna Schleunes, Assistant City Attorney

The City of Charlotte's cemetery ordinance and local rules and regulations give no guidance with respect to the flying of flags or the display of emblems at publicly owned cemeteries.  State law is essentially silent on flag policy, as well.   

Although the City has no specific prohibition against the flying of flags on City-owned property, Cemetery Rules and Regulations are predicated on the City's authority to control its cemeteries.  Under these rules, the City controls all work done at City-owned cemeteries.  In addition, improvements made to a cemetery are subject to the consent and approval of cemetery management.  If improvements are made without management approval, the Director of the Cemeteries Division has the right to remove, alter or change the improvement.  These rules also provide that the City has the right to remove any marker or memorial that does not comply with the standard rules, regulations and specifications adopted by cemetery management. 

Two recent federal cases specifically address the issue of Confederate battle flags being flown in publicly owned cemeteries.  Both courts examined the issue in the context of the rights granted by the First Amendment to the Constitution, namely freedom of speech and freedom of assembly.   In one case, the Fourth Circuit Court of Appeals upheld the Veterans Administration's refusal to permit the Confederate flag to be flown daily in its cemetery.  Decisions of the Fourth Circuit serve as precedent in Charlotte's federal judicial district.  As a result, the Fourth Circuit's holding that the government may reasonably restrict speech in public cemeteries provides very strong legal support for City Council's ability to set policy regarding the flying of the Confederate flag in the City's cemeteries.

In the second case, the United States District Court in Atlanta upheld a decision by the City of Stone Mountain, Georgia to restrict the Confederate flag from being flown in a city-owned cemetery.  In deciding the case, the United States District Court in Atlanta examined the city's ability to regulate First Amendment activity in its cemetery.  The District Court decided that the City of Stone Mountain could place restrictions on speech in the cemetery as long as those restrictions were reasonable and viewpoint-neutral.  

This case law makes clear that the City of Charlotte may set policy regarding City-owned cemeteries, even if that policy limits the speech of others.  As a result, since Elmwood is a City-owned cemetery, the City of Charlotte has the authority to make and enforce rules permitting or prohibiting the flying of flags at City-owned properties.

Elmwood/Pinewood Cemetery
~ Adapted from the Survey and Research Report on Elmwood/Pinewood Cemetery, Emily D. Ramsey, 2001.

Elmwood Cemetery is Charlotte's second-oldest public cemetery, and was named a local historic landmark by the Charlotte City Council in 2003.  Some of Charlotte's most prominent citizens purchased family plots during the late 1800s and early 1900s, including developer Edward Dilworth Latta; textile entrepreneur D.A. Thompkins; former Charlotte Mayor S.S. McNinch; and W.W. Smith, Charlotte's first black architect.

Originally, the cemetery was segregated into all-white Elmwood Cemetery; all African American Pinewood Cemetery; and Potter's Field, which was used exclusively for the burial of white citizens who could not afford to purchase a plot.  No roads connected Pinewood and Elmwood Cemeteries, and Pinewood could not be accessed by the main entrance to Elmwood on Sixth Street.  To emphasize the boundaries between already segregated Elmwood and Pinewood cemeteries, a fence was erected in the 1930s between the two burial grounds. Years after the City voted against discrimination in the sale of cemetery plots, the fence remained until the late 1960s when Fred Alexander, Charlotte's first black city councilman, successfully lead a crusade to bring down the fence that separated Elmwood and Pinewood Cemeteries.  Today, these three areas now combine to form one cemetery, a 72-acre plot of rolling green space in the heart of Charlotte.

The Confederate Flag
Submitted by David Goldfield
Robert Lee Bailey Professor of History
Department of History, UNC-Charlotte

Confederate soldiers fought under many battle flags during the Civil War.  The St. Andrews Cross flag (what we call the Confederate battle flag today) was one of those flags.  After the war, veterans used that battle flag primarily for ceremonial events.  During the 1890s, however at the height of the white supremacy campaigns across the South, when state legislatures disenfranchised African-American voters and legalized racial segregation, and when lynching reached an all-time high there was a resurgence of Confederate symbols.  Several states Alabama, Florida, and Mississippi redesigned their state flags to resemble the Confederate battle flag and to reflect the white supremacy campaign (in the cases of Florida and Alabama, legislators explicitly referred to the white backgrounds of the new flag as symbolizing white supremacy).  By the early 1900s the battle flag again receded to primarily ceremonial use.  Not until the late 1940s, in response to the civil rights initiatives of the Truman Administration and the Dixiecrat Revolt within the Democratic Party, did the battle flag reappear at numerous public venues.  In 1956, the state of Georgia, as a statement of defiance to the federal government and the emerging civil rights movement, changed its state flag to include the battle flag.  In 1962, the South Carolina legislature elevated the flag atop its State House, where it remained until 2000. 

How to interpret the battle flag?  Its connection to white supremacy is unmistakable.  Yet, many of the brave men who fought under that banner held no such motives.