The Senate may be within one or two votes of passing a constitutional amendment to ban desecration of the U.S. flag, clearing the way for ratification by the states, a key opponent of the measure said Tuesday.
“It’s scary close,” said Terri Schroeder of the American Civil Liberties Union, which opposes the amendment. “People think it’s something that’s never going to happen. … The reality is we’re very close to losing this battle.”
Congress regularly has debated the issue since the U.S. Supreme Court overturned a Texas flag desecration law in 1989 and its own Flag Protection Act the next year. But until now, it has failed to muster the two-thirds vote needed in both the House of Representatives and the Senate before states try to ratify the measure.
Next week, the House will vote on the amendment for a seventh time. If history is a guide, it will pass for a seventh time. That’s when the spotlight switches to the Senate, where the amendment has always died.
But this time may be different. Amendment supporters say last year’s election expanding the Senate Republican majority to 55 has buoyed their hopes for passage. Five freshmen senators â€” Richard Burr of North Carolina, Tom Coburn of Oklahoma, Jim DeMint of South Carolina, John Thune of South Dakota and David Vitter of Louisiana â€” voted for the amendment as House members and plan to do so again.
They will be joined by at least five Democrats who have co-sponsored the resolution, including Dianne Feinstein of California and Ben Nelson of Nebraska. Both are up for re-election next year.
Not all senators have publicly declared their support or opposition.
In 2000, when the Senate last took up the matter, 63 voted for the amendment, four short of a two-thirds majority.
“We’re going to have deeper support for this, and the intensity is growing,” Thune said Tuesday, which was Flag Day. “There’s momentum.”
Norm Ornstein, a political analyst at the business-oriented American Enterprise Institute for Public Policy Research, says he expects “a cliffhanger.” He says Senate Majority Leader Bill Frist, R-Tenn., is eager to bring up the issue, and some Democrats may be too nervous to oppose it.
Scenes of foreigners burning American flags may be common on TV, but such desecration is rare in this country. The Citizens Flag Alliance, an advocacy group that supports a constitutional amendment, reports a decline in flag desecration incidents, with only one this year.
Still, “it’s important that we venerate the national symbol of our country,” said Sen. Orrin Hatch, R-Utah, the amendment’s chief sponsor. “Burning, urinating, defecating on the flag â€” this is not speech. This is offensive conduct.”
The Senate Judiciary Committee may not hold a hearing until around the July Fourth holiday, and a floor vote hasn’t been scheduled.
University of Virginia political scientist Larry Sabato is skeptical about the amendment’s prospects. “They may come close,” he says, “but I would put good money on the likelihood that, once again, it won’t be sent to the states.”
If it is, though, “it is almost a foregone conclusion that the states would ratify” the amendment, says John Vile, a constitutional law expert at Middle Tennessee State University and editor of Encyclopedia of Civil Liberties in America.
Every state legislature has passed resolutions urging Congress to send them a constitutional amendment to ban flag desecration. Still, such resolutions aren’t binding, and “that doesn’t necessarily mean it would pass in the states,” says Heather Morton, of the National Conference of State Legislatures.
A poll released last week by the Freedom Forum First Amendment Center in Nashville found 63% oppose a flag amendment, up from 53% last year.
“Clearly, more Americans are having second thoughts about using a constitutional amendment to” instill respect for the flag, said Gene Policinski, the center’s executive director. “Many Americans consider it the ultimate test of a free society to permit the insult or even desecration of one of the great symbols of the nation.”
Let’s all remember how the government disposes of old flags: they get burned. What’s the difference between the government burning a flag and a citizen? When a citizen burns the flag of the United States, its in protest.
From Congress’ point of view, this isn’t about protecting the flag, this is about restricting how citizens may protest the government. Let’s remember that this country was founded on, among other things, the basic principle that protesting an unjust government was an acceptable thing to do. Don’t let our government decide how we can or can’t protest against it.