WASHINGTON — A Senate panel yesterday advanced a proposed constitutional amendment to ban flag desecration. The amendment reads: "The Congress shall have power to prohibit the physical desecration of the flag of the United States."
The measure was approved on a 6-3 vote of the Senate Judiciary subcommittee on the Constitution, led by Kansas Republican Sam Brownback.
The House already has passed the amendment. Assessments differ on how likely the full Senate is to pass it. Although the 58 Senate co-sponsors are nine short of the two-thirds majority required to send constitutional amendments to the states, additional senators are likely to vote for the flag amendment, possibly putting it on the verge of passing.
Once a constitutional amendment is sent to the states, approval by three-fourths of the state legislatures is needed for ratification. All 50 state legislatures have already signaled they would approve such an amendment.
When the Senate last voted on a similar measure in 2000, 63 members voted in favor and 37 against, just four votes shy of the two-thirds majority needed. Brownback said he was not sure whether enough lawmakers would support the measure this time.
The Supreme Court in 1989 issued the first of two 5-4 decisions declaring that flag desecration amounts to free speech protected by the First Amendment. (The 1989 decision was Texas v. Johnson; the second ruling was 1990's U.S. v. Eichman.) Free-speech advocates say a constitutional prohibition on flag-burning would be censorship.
"Make no mistake, we are talking here about modifying the Constitution of the United States to permit the government to criminalize conduct that, however misguided and wrong, is clearly expressive and sometimes undertaken as a form of political protest," said Sen. Russ Feingold, ranking Democrat on the panel.
But Brownback defended his push for passage of the amendment, saying a prohibition against desecration of the flag "merely prohibits certain types of conduct, not a particular idea."