Court Strikes Down New Flag Law : 5-4 Ruling Expected to Spark Congressional Battle on Constitution

The Supreme Court today struck down a new federal law that outlaws burning the American flag. “Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered,” the court said.

The court’s 5-4 decision in the flag case indicated the divisiveness of the emotional issue. The ruling is certain to touch off a political battle in Congress to pass a constitutional amendment protecting the flag from desecration.

In a split identical to a ruling last year on the flag-burning issue, the justices said the Flag Protection Act of 1989 violates freedom of expression guaranteed by the First Amendment to the Constitution. Writing for the majority, Justice William J. Brennan called it a “bedrock” constitutional guarantee.

President Bush said he would intensify his efforts to win approval of a constitutional amendment banning flag-burning. “Some of us said ahead of time that the legislative approach would not be upheld. Apparently, the court decided that,” he said.

Speaking to reporters after a Rose Garden ceremony honoring drug-free schools, Bush said he would “continue to press for what I strongly believe is in the public interest.”

Congressional leaders had said that if the law were declared invalid, they would move quickly for votes in the House and Senate on a constitutional amendment to protect Old Glory from burning or desecration.

That move is expected to inject the issue into this fall’s congressional and state legislative campaigns.

A constitutional amendment would require approval by two-thirds of the members of the House and Senate and then ratification by 38 state legislatures. The First Amendment has not been altered in 199 years.

“We are aware that desecration of the flag is deeply offensive to many,” Brennan wrote.

But, quoting from the court’s earlier ruling, he said, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Brennan noted that the government has said there is a national consensus in favor of banning flag burning. “Even assuming such a consensus exists, any suggestion that the government’s interest in suppressing speech becomes more weighty as popular opposition to that speech grows is foreign to the First Amendment,” he said.

Justice John Paul Stevens, in a dissenting opinion, said the government has a legitimate interest in banning flag burning.

“The flag uniquely symbolizes the ideas of liberty, equality and tolerance--ideas that Americans have passionately defended and debated throughout our history,” he said. “The flag embodies the spirit of our national commitment to those ideals.”

In the 1989 case, the court struck down a Texas law banning flag burning. It was that year-old opinion that prompted Congress to approve the federal law declared unconstitutional today.