Administration Appeals 2 Rulings Against Flag Law

The Bush Administration took its flag-burning appeals to the Supreme Court Tuesday and urged the justices to rule on the issue by July.

If the high court acts by then and declares the law against flag-burning unconstitutional, as many observers believe likely, Republican candidates could make protecting the flag a fall campaign issue.

Two federal courts recently struck down as unconstitutional the flag-burning law passed by Congress last year. Both decisions were appealed to the high court Tuesday. President Bush has said that if the law is struck down, he will push for a constitutional amendment to protect the flag.

However, a constitutional amendment must be passed by Congress, then sent to the states for ratification, a time-consuming process.

The state legislative races have an added significance this year because the party in control of each Legislature will dominate the redrawing of the state’s political boundaries after the 1990 census.

Last month, U.S. District Judge Barbara J. Rothstein in Seattle struck down as unconstitutional the Flag Protection Act of 1989. This was the measure hurriedly passed by Congress after the high court in June ruled that a Texas law banning flag-burning violated the free speech rights of a radical protester. Last week, a second judge here in Washington also ruled the law unconstitutional.

The Justice Department had indicated it would appeal those rulings directly to the Supreme Court. On Tuesday, government lawyers not only filed their appeals of the two rulings, but added a motion urging speedy action by the justices.

The law itself said the court should “expedite to the greatest extent possible” its reconsideration of the flag issue.

Usually, lawyers representing the defendants would have 30 days to contest the government’s appeal motion. In this case, however, Bush Administration lawyers suggested a time limit of 10 days, or March 23. After receiving such motions, the justices typically consider them for a few weeks and then announce whether they will hear arguments on the issue. If a case is to be heard, the two sides usually have at least 60 days to prepare briefs. But government lawyers said the briefs could be filed within three weeks and oral arguments set for April 25--the last day the court will hear arguments this spring.

Kenneth W. Starr, the Justice Department’s lawyer before the high court, conceded that “under ordinary circumstances” the flag cases would be scheduled in the court’s fall term. But “such routine treatment . . . would plainly be incompatible” with the law’s call for expedited review, he told the justices.

Duke University law professor Walter Dellinger, who advised Senate Democrats on the flag bill, said he suspects the politics of reapportionment may be behind the government’s move for quick action.

In response to the court ruling last summer, Bush proposed amending the Constitution, but congressional Democrats balked and pushed instead for a new law. This measure says it is a crime for anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States.” However, no one will be punished for “the disposal of a flag when it has become worn or soiled.”

The high court’s flag-burning ruling last year was sweeping in its language. But Democrats in Congress pointed out that the Texas law that was struck down by the high court banned flag-burning only when it caused “serious offense” to an onlooker. This peculiar provision of the law made for a poor test case, they said. They argued that a total prohibition on flag-burning, as written by Congress, might well pass muster with the high court.

But most constitutional lawyers remain skeptical and expect the same five justices will eventually strike down the new law too.