Senate Turns Down Amendment to Bar Desecration of Flag : Constitution: Effort to give Congress the right to protect the flag falls short of two-thirds majority. White House opposes the measure on free-speech grounds.

The Senate narrowly rejected a proposed constitutional amendment Tuesday that would have given Congress the right to enact laws prohibiting desecration of the American flag. The 63-36 vote in favor of the amendment fell three votes shy of the required two-thirds majority.

The measure’s floor sponsor, Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah), blamed President Clinton for its defeat. “Had the president supported this amendment, I have no doubt” it would have won Senate approval, he said.

Hatch also vowed to bring the measure back another day. “This amendment is not going to go away,” he said.

The amendment’s opponents included many civil rights organizations as well as the administration.

The White House said Tuesday that Clinton would favor another attempt to write a federal law banning desecration of the flag but that he opposes a constitutional amendment because it would alter the Bill of Rights--which includes the 1st Amendment guarantee of freedom of speech.

“The guys in the powdered wigs had it about right in 1792,” White House Press Secretary Mike McCurry said.

The drive to adopt a flag-desecration amendment came after two Supreme Court rulings, in 1989 and 1990, that struck down state and federal statutes banning flag desecration. The court held that those laws violated an individual’s right to free speech and expression under the 1st Amendment.

For now at least, the flag amendment joins 10,736 other proposed constitutional changes that have fallen by the wayside since the founding of the Republic. Only 33 such proposals have ever been approved by Congress and sent to the states for ratification. Of those, 27 received the required approval by three-fourths of the state legislatures and thus became amendments to the Constitution.

Of the 36 votes against the amendment, four were cast by Republicans. Fourteen Democrats voted for the measure. California’s two Democratic senators split on the issue: Barbara Boxer voted against it, while Dianne Feinstein was one of its 56 Senate sponsors.

The Senate proposal would have permitted Congress to enact laws protecting the flag. It stated: “The Congress shall have power to prohibit the physical desecration of the flag of the United States.”

The House version, which was approved handily in June on a vote of 312 to 120, would have allowed state legislatures, as well as Congress, to enact flag-protection laws. But the Senate took out the state provision to avoid what Sen. Joseph R. Biden Jr. (D-Del.) called a potential “patchwork of 50 idiosyncratic” laws.

The measure’s defeat stunned the Citizens Flag Alliance Inc., whose congressional lobbyists confidently claimed last week that they had 67 “solid” votes--all supposedly based on personal commitments from senators.

After the vote, the alliance, a coalition of about 100 groups lobbying for the amendment, issued a four-word statement alluding to repercussions against opponents of the amendment at the ballot box next fall. “See you in November,” the group said.

Polls have consistently shown that up to 80% of Americans support a flag-desecration amendment. After the Supreme Court rulings striking down the flag laws, 49 state legislatures (except Vermont) passed resolutions urging Congress to adopt a flag-desecration constitutional amendment.

Such an amendment failed in 1990 when it got a majority in both houses but fell short of the necessary two-thirds votes. The movement gained new steam after the Republican victory last November gave the GOP control of both the House and Senate.

The administration opposed the measure in testimony before the Senate Judiciary Committee earlier this year, even though the president has no veto authority over constitutional amendments.

Assistant Atty. Gen. Walter Dellinger, speaking for the administration, told the committee that such a measure would “create legislative power of uncertain dimension to override the 1st Amendment and other constitutional guarantees.”

Speaking against the proposal before the final vote, Senate Minority Leader Tom Daschle (D-S.D.) said that the amendment would be “the first time in history we’ll be amending the Bill of Rights.”

Other opponents argued that amending the Constitution would erode citizens’ rights and elevate an insignificant form of protest to a level above its due.

Critics also contended that a flag-desecration law would “open up a Pandora’s box of litigation.” They noted that fewer than 45 flag-burning incidents have been reported in the nation’s history.

Laura W. Murphy, director of the American Civil Liberties Union’s Washington office, said that a flag amendment would amount to an expansion of government that goes against a GOP majority in Congress, which has said it abhors big government.

Hatch, however, argued that the flag is a unique national symbol that deserves special protection, arguing that it “is the one overriding symbol that unites a diverse people in a way nothing else can, or ever will.”

“We have no king,” he said. “We have no state religion. We have the American flag.

“The flag-protection amendment does not amend the 1st Amendment,” he argued. “It reverses two erroneous decisions of the Supreme Court.”

In addition to the ACLU, groups opposing the amendment include the American Bar Assn. and the American Society of Newspaper Editors. Organizations backing the measure include most veteran groups, such as the Veterans of Foreign Wars and the American Legion.