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Flag amendment fails by 1 vote

A constitutional amendment that would allow Congress to ban flag-burning inches closer to passage, but falls short.

By ANITA KUMAR
Published June 28, 2006

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WASHINGTON - The U.S. Senate came closer Tuesday than ever before to passing an amendment to the Constitution to protect the American flag from desecration, but failed by a single vote in a cliffhanger that neither side could predict.

A bigger Republican majority and patriotic feelings after the 2001 terrorist attacks led many senators to consider the evening vote the best chance in 15 years to achieve a required two-thirds majority. It didn't hurt that next week is July 4, either.

Senate approval would have marked the first time in almost three decades that Congress had agreed to amend the Constitution. The proposed amendment would not have forbidden flag desecration, but rather would have expressly given Congress the authority to outlaw it.

"Old Glory lost today," Senate Majority Leader Bill Frist said. "Protecting the symbol of our nation's freedom is important, and I hope the amendment's support in the Senate will continue to grow."

The Senate's 66-34 vote was just shy of the 67 votes needed for passage. President Bush issued a statement expressing disappointment at the outcome.

Florida's senators, Republican Mel Martinez and Democrat Bill Nelson, voted for the amendment.

"Although we treasure and value our right of free speech, I do believe it is important that we understand that there are some things that ought to be protected," Martinez said. "We protect our national monuments not just because they're pieces of property that are beautiful, it's really more about the symbols of what they are."

The amendment has been considered repeatedly - but never passed - in response to U.S. Supreme Court rulings in 1989 and 1990 that said burning and other desecrations of the flag are free political speech, protected by the First Amendment.

The Senate's emotional debate, which started Monday and lasted throughout Tuesday, included passionate remarks about troops and veterans, the Founding Fathers and the First Amendment. Some even drew comparisons to the Republican intervention in last year's Terri Schiavo case.

Supporters describe the flag as a national monument that symbolizes both the sacrifice of U.S. troops and the value of freedom. Opponents argue that any change to the Constitution should not restrict the public's right to express itself.

"Our country's unique because our dissidents have a voice," said Sen. Daniel Inouye, D-Hawaii, a World War II veteran who lost an arm in the war and was decorated with the Medal of Honor. "While I take offense at disrespect to the flag, I nonetheless believe it is my continued duty as a veteran, as an American citizen, and as a United States senator to defend the constitutional right of protesters to use the flag in nonviolent speech."

The Senate was considered the only obstacle to the amendment. The House of Representative has repeatedly passed the amendment, and at least 38 states were expected to easily approve it as the Constitution requires.

"Despite an overwhelming majority of Americans that want our flag protected, the U.S. Senate has ignored the people they represent," said retired Maj. Gen. Patrick Brady, chairman of the board of the Citizens Flag Alliance. "Some senators claimed that there are more pressing matters to attend to; however, it is never the wrong time to do the right thing."

On Tuesday, the House also passed on a voice vote the Freedom to Display the Flag Act that would bar condominiums and homeowner associations from restricting the size or placement of flags by residents.

Some Democrats accused the GOP-controlled Congress of pushing for a vote on the flag-burning amendment, and other favorite conservative issues, just to get credit for the effort on Election Day in November. Even some Republicans acknowledged the connection.

In recent weeks, the Senate has taken up, and lost, two other key votes. One bill would have banned same-sex marriage, and another would have repealed the estate tax. Lawmakers appear to have reached a compromise on the estate tax, and the Senate is expected to take up the issue later this year.

Whether the bills pass or not, how senators voted on the issues, including the flag amendment, are expected to become fodder for election debates and ads.

But flag burning is not completely a partisan issue.

Fourteen Democrats, including Minority Leader Harry Reid of Nevada and Nelson, voted for the amendment. Three Republicans, including Sen. Mitch McConnell of Kentucky, the second-ranking Republican leader in the Senate, were opposed.

"I support a constitutional amendment to honor the American flag," said Nelson, who is running for re-election in November. "I feel our flag is an important symbol of national pride and unity deserving of special protection."

In 1989, the Supreme Court voted 5-4 to strike a Texas law that barred flag burning, ruling that the law restricted freedom of expression guaranteed by the Constitution. Before that ruling, 48 states had laws banning such an act.

In response, Congress then passed a law that would have punished anyone who purposefully mutilated, defaced, burned or trampled on the flag, among other actions. In 1990, a 5-4 Supreme Court decision invalidated that law.

The House has passed an amendment six times since 1995, most recently in June 2005 when it passed by a vote of 286-130, easily topping the two-thirds margin required for a constitutional amendment. The Senate has twice fallen short by just a handful of votes, the last time in 2000 when it fell four votes short.

In recent years, all 50 states have adopted resolutions supporting flag protection.

"The Constitution has somehow survived once again, unfettered and unstained by the political powers that be, and that is reason to celebrate," said Terri Ann Schroeder, senior lobbyist for the American Civil Liberties Union. "Allowing a ban on flag desecration would have compromised the very freedoms that our Founding Fathers struggled so hard to attain. By wisely voting down this amendment, the Senate has done its duty as protectors of our Constitution."

But supporters argued that opponents misunderstood. They said the proposed amendment would only have given Congress, not judges, the power to decide the flag-burning issue.

"This amendment pure and simple is a restoration of the Constitution to what it was before unelected jurists changed it. This does not interfere with the First Amendment," said Sen. Orrin Hatch, a Utah Republican who sponsored the amendment. "This does not take away First Amendment rights. It merely restores the power back to the Congress of the United States."

Times researcher Angie Drobnic Holan contributed to this report. Anita Kumar can be reached at kumar@sptimes.com or 202 463-0576.

[Last modified June 28, 2006, 02:08:27]