Lawmakers square off over flag-protection amendment

WASHINGTON — WASHINGTON -- The first time the Supreme Court weighed in on desecration of the American flag, the subject was beer. The court held that states could outlaw flags on bottles of Stars and Stripes beer because such marketing would "degrade and cheapen" the flag.

That was 1907. Eighty-two years later, in 1989, the court ruled that the constitutional right to free speech permitted the flag to be desecrated, even by burning it.


Majorities in the Senate and the House of Representatives have been trying to turn back the clock ever since.

Senate Majority Leader Bill Frist, a Tennessee Republican, plans a vote this week on a proposed amendment to the Constitution that would give Congress the right to outlaw desecration of the flag. Debate could begin as early as today.


The House routinely has approved the flag amendment by broad margins, but the Senate twice has fallen short of the two-thirds majority needed to send the question to the states for ratification. This year, the amendment is expected to obtain 66 of the 67 Senate votes required.

"This is the place to stop it," said Sen. Edward M. Kennedy, a Massachusetts Democrat, who contends that passage of the amendment would damage the right to free speech. "This will be one of the most important votes we cast in this session."

Dousing flags with flammable liquid and setting them on fire, which became an eye-catching way of protesting the Vietnam War in the 1960s and '70s, occurs infrequently today. The pro-amendment Citizens' Flag Alliance lists three instances of flag desecration this year, including one involving a drunk who tore two small flags from a sailors' monument in West Haven, Conn.

Meanwhile, the Gallup Poll has chronicled a drop in public support for amending the Constitution to protect the flag, down from 71 percent in 1989 to 55 percent last year.

Still, the flag stirs emotions. All 50 states have adopted resolutions in recent years advocating a flag-protection amendment, and some opinion polls show support in conservative states as high as 70 percent. Backers and opponents say the Senate is the only obstacle standing in the way of ratification of an amendment by three-quarters of the states, as the Constitution requires.

"It would probably be the swiftest-ratified amendment in the history of the country," said Marty Justis, executive director of the Citizens' Flag Alliance.

Some Republicans criticize Frist for pushing the amendment, which they see as more about rallying conservative voters for November's congressional elections than governance. This month, Frist held votes on two other hot-button conservative issues, outlawing gay marriage and repealing the estate tax, even though both were bound to fail.

"The House and Senate floor is about substantive work for the nation, and I think campaigns ought to be kept in the streets where they belong," said former House Republican leader Dick Armey of Texas. "Frist seems to be going about 80 percent politics and 20 percent policy."


Republicans concede that it is unlikely that the Senate will pass the amendment. They say some senators who have voted in favor of the measure previously to avoid political backlash at home -- knowing that it wouldn't pass the Senate -- probably would vote "no" if it looked like the amendment were about to pass.

Support for the amendment is bipartisan, with 14 Senate Democrats, including Minority Leader Harry Reid of Nevada, favoring it. But there are important opponents as well, including Sen. Mitch McConnell of Kentucky, the second-ranking Republican leader in the Senate.

"I think the First Amendment has served us well for over 200 years. I don't think it needs to be altered," McConnell said yesterday on ABC's This Week.

The Supreme Court's 1989 decision centered on a Texas protester, Gregory Lee Johnson, who burned a flag during the 1984 Republican National Convention in Dallas while other protesters chanted, "America the red, white and blue, we spit on you."

The court concluded: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Critics say the 1989 court opinion was typical of an activist judiciary.


"The ability to protect the flag is something that legislative bodies should have a right to do. When judges took that away, they overstepped," said Sen. Lindsey Graham, a South Carolina Republican and a co-sponsor of the amendment. "When you desecrate or defile the flag, that ... is a destructive act, not symbolic speech."

Some senators fear the flag-protection issue could decide the fall elections, and possibly whether Republicans or Democrats win control of the Senate.

"There are single-issue voters in a country that is evenly divided, races are evenly divided, and some are worried about the political implications," Kennedy said.