No matter where you stand on the debate over Merced’s flag policy, the devil is in the details.

Victor A. Patton

The Merced FOCUS

Last month the city received an application to fly a flag in recognition of “Unveiling Day,” an official holiday of The Satanic Temple that is recognized annually by the group’s adherents on July 25.

The application is among the latest developments in the ongoing discussion by city leaders about how they approach choosing which flags can be flown in Bob Hart Square and at city facilities.

Just last month, the city began taking initial steps to update its flag policy – section C-7 of the city’s administrative policies and procedures – amid concerns from Councilmember Shane Smith the city could face a free speech lawsuit if it’s not revised.

Flag Request Process Under Scrutiny

Until recently, the city offered a form on its website, allowing applicants from the community to make requests to display commemorative flags in the square, alongside the American and state flags.

That request was removed from the city’s website after Smith brought forth his concerns. At that point, the city council had already given initial application approvals for flags to fly in the square honoring Black History Month, Pride Month and a Christian flag in recognition of Easter.

The request for the Satanic flag was filed on Feb. 18 by Henry Hickman. His application included a brief narrative that cited Unveiling Day as a religious holiday and The Satanic Temple as a recognized religious organization.

The application states that flying the flag will “help bring together Merced and show the public’s support for secularism and the separation of church and state. It will be a time to come together as a community and grow and listen and help each other with our needs.”

Efforts by The Merced FOCUS to reach Hickman about the flag application were unsuccessful.

Thus far, there has been no confirmation The Satanic Temple itself as an organization had any involvement in Hickman’s filing of the application.

The organization, which has numerous chapters nationwide, has been involved in legal actions challenging government entities on issues of separation of church and state. In that regard, the group has also challenged the display of Christian symbols at government buildings.

The Merced FOCUS emailed a request for an interview to The Satanic Temple’s media account, but so far that message has not been returned.

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City’s Response to Satanic Flag Request

Although the Merced City Council has approved several flag requests for other groups this year, the Satanic flag application won’t make it to the council for consideration.

Jennifer Flachman, city of Merced spokesperson, said city staff have already denied that application, on the basis it was filed in an untimely manner. Flachman said Hickman’s application was filed a month after the city had already received all the flag applications that would be considered for 2025.

All of the flag requests approved by the city for this year were received before the end of January.

Merced Mayor Matt Serratto told The Merced FOCUS he had heard about the application for the Satanic flag. He questioned its origin and whether it was filed by someone from outside the Merced community.

“All of the other (flags) we’ve approved, you know there is certainly plenty of controversy surrounding all of them. But these are groups that are very much rooted in Merced, doing good work for a long time in Merced,” Serratto said.

“Some of them are at odds, such as the Pride groups and the religious groups, but both of those groups have a lot of people who do incredible work for our community.”

Serratto said it’s “an unfortunate reality” that some will try to test the limits of local government. “Part of me is surprised that we’ve gone this long without any major issues,” Serratto said, referring to the city’s practice of allowing commemorative flags.

Smith told The Merced FOCUS he’s not surprised someone filed an application for a Satanic flag – given the concerns he’s raised about the flag practice potentially making the city a target for litigation.

“I am just glad we were able to correct the issue in a nick of time,” Smith said. “This kind of additional request just speaks to the danger that I talked about at the council meeting on (February) 18th.”

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What’s at Stake?

The language of the city’s C-7 flag policy doesn’t specifically mention allowing third parties to fill out applications to fly commemorative flags.

The city began using the application, called the Request for Display of Commemorative Flag Form, back in 2021 at the direction of city council, according to an administrative staff report.

The move came after the city council directed staff to create a flag policy, following its May 3, 2021 approval of allowing the LGBTQ+ Pride Progress Flag to fly in Bob Hart Square in June of that year.

“Administration at that time set up an application process to assist City Councilmembers to propose various commemorative flags for the entire body to consider,” Flachman, the city’s spokesperson, said in an email to The Merced FOCUS.

At the Feb. 18 council meeting this year, Smith argued the city’s practice in the past few years of allowing third party requests from the community to display certain flags – via the flag form application on the city’s website – had made the city flagpole in Bob Hart Square a public forum.

He felt allowing that practice to continue wouldn’t prevent any third party from displaying their chosen commemorative flag, regardless of whether city leaders agreed with the viewpoint. That could include groups the council considers to be extreme or hateful.

Smith said the revised flag policy should affirm that the council – not members of the public – can request the display of commemorative flags at city facilities. Smith believes that revision would support those flags as being government speech, rather than a public forum for free speech.

Plus, it would help the council moderate control over its message. “If there is a (flag) proposal made at the council dais, that’s going to be coming from a council member, and if there is majority support for it, then the decision to fly that particular commemorative flag becomes government speech,” Smith told The Merced FOCUS.

“And that’s kind of what the Constitution envisions. If the community doesn’t like our decision to fly a flag in the first place, or they don’t like the flag that is flown, the remedy is the ballot box.”

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Others Weighing-in on Flag Issue

Although the topic of Merced’s flag policy may be a local issue, that doesn’t mean groups from outside the city aren’t paying attention.

On Feb. 24 the city received a letter from an attorney representing the Freedom from Religion Foundation, a Madison, Wisconsin-based organization that is “committed to the cherished principle of separation of church and state,” according to the group’s website.

In the letter, the organization’s staff attorney Samantha F. Lawrence asked the city to reconsider its approval of the Christian flag flying in Bob Hart Square.

Lawrence’s letter cited concerns brought to the council by Fue Xiong, who represents Merced City Council District 6.

Xiong, the lone council member who in February voted against the request to fly the Christian flag, cited that it had been flown by white supremacist and extreme right wing groups.

Other members of the council disagreed, citing the large abundance of Christians from all walks of life and political persuasions who reside in Merced.

Still, Lawrence’s letter disapproved of the council’s decision. “While the City’s intentions behind its flag policy are surely admirable, it should avoid displaying flags that promote a single religion or that have become symbols of division and exclusion,” Lawrence wrote.

When asked about the letter from the Freedom from Religion Foundation, Smith told The Merced FOCUS he did not agree with the group’s legal argument.

From Smith’s perspective, because the city’s prior practice was to accept flag requests from third parties, the First Amendment prohibited the council from accepting some requests – and not others – regardless of the viewpoint of the party making the request.

Smith, who works as an intellectual property attorney, has also previously referenced a U.S. Supreme Court ruling where the court stated that City of Boston must allow a Christian flag to fly outside its city hall. In that same case, the court determined cities can have policies that say commemorative flags are government speech.

Smith’s proposed revisions to how the city approaches commemorative flags are now under review by City Attorney Craig Cornwell. Those revisions are expected to eventually return to council for further discussion.

About the Author

Victor Patton is editor-in-chief of The Merced FOCUS.