Senate Passes Ban on Burning U.S. Flag, 91 to 9 : Measure Provides for Up to a Year in Jail; Some Still Pressing for Amendment

Following the House’s example, the Senate Thursday overwhelmingly approved a bill to make burning of the American flag a federal crime. The action is intended to circumvent a Supreme Court ruling that flag-burning is protected by the First Amendment to the Constitution.

The Senate voted, 91 to 9, to fix a sentence of up to one year in prison and a $1,000 fine for “whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples on the flag of the United States.”

The words “physically defiles” were added by an amendment offered by Sen. Pete Wilson (R-Calif.) and approved Thursday by a vote of 76 to 24.

Sponsors of the legislation contended that it would protect the flag without infringing on fundamental rights. But some senators, even those who voted for the bill, continued to press for a constitutional amendment--an action supported by President Bush.

However, several lawmakers said that even the less drastic move of enacting a law rather than approving a constitutional amendment was overreaction. They argued that it is better to do nothing than to risk jeopardizing liberties guaranteed by the Bill of Rights.

“I see no threats to our domestic tranquility being offered by lines of people preparing to burn the American flag,” said Sen. Bob Kerrey (D-Neb.), who won a Congressional Medal of Honor for valor in Vietnam. “The negative feelings that all of us have . . . toward people who burn a flag is deterrent enough.”

But the vast majority of senators preferred to take the politically safer course of voting for the bill rather than risking campaign charges that they are soft on flag-burning or lacking in patriotic fervor. Almost one-third of the senators delivered speeches on the flag, taking up more than eight hours Wednesday and Thursday, despite pressing business that forced cancellation of the Senate’s long-scheduled October recess next week.

The bill will now go back to the House for its endorsement of the Senate version. Supporters are expected to push for unusually swift action so that Bush can sign the measure before a coming Senate vote on a constitutional amendment to ban flag-burning.

Although Senate advocates of a constitutional amendment concede that they lack the required two-thirds vote necessary to get it approved, opponents said that the outcome could be very close. The House also was expected to vote on a constitutional amendment before Congress adjourns for the year.

Even so, the political atmosphere was far less super-heated than it had been immediately after the Supreme Court decision last June 21 to strike down a Texas law against flag-burning. The decision was made on grounds that it clashed with the First Amendment by prohibiting the exercise of free speech.

The case involved Gregory Lee Johnson, a left-wing demonstrator who set fire to a flag during the 1984 Republican Party convention in Dallas. The case initially stirred widespread outrage, which was reflected in Senate and House resolutions, but subsequently passions seem to have subsided.

As Sen. Arlen Specter (R-Pa.) said in an unconscious pun during the daylong debate on the measure Wednesday, desecration of the flag “is no longer a burning issue.” Other lawmakers insisted that, although public feelings are more subdued, a lot of passion rages not far below the surface.

Sen. Joseph R. Biden Jr. (D-Del.), chairman of the Senate Judiciary Committee and floor manager for the bill, defended it as “simple, quick and constitutional,” and very similar to a measure approved, 380 to 38, by the House in September.

Sen. Strom Thurmond (R-S.C.) said that he would support the bill, despite doubts that it would survive a court challenge, adding: “A 27th Amendment is the only sure and foolproof way to protect the integrity of the American flag.”

Senate Minority Leader Bob Dole (R-Kan.), one of the lawmakers sponsoring a constitutional amendment, said: “The American people do not want a quick fix and they do not want a statute . . . . A statute simply will not do the trick.”

Sen. Edward M. Kennedy (D-Mass.), who opposed both the bill and an amendment, argued: “It is wrong to desecrate the Constitution to prevent desecration of the flag . . . . It would change the flag from a treasured symbol to a government-regulated icon.

“There is no need to adopt an amendment--or even pass a law--merely to express our anger at a single despicable act of flag-burning,” Kennedy concluded.

Both the Senate- and House-passed bills allow the burning of soiled flags--the method of disposal often used by veterans’ groups and once recommended in a U.S. flag code.