On January 6, 2015, House Joint Resolution (H.J. Res.) 9 was introduced by Rep. Steve Womack, R-Ark. This legislation is a proposed constitutional amendment to protect the American flag from physical desecration. Its text states simply: “The Congress shall have power to prohibit the physical desecration of the flag of the United States.”  The resolution was referred to the Committee on the Judiciary, which referred it Jan. 12 to the Subcommittee on the Constitution and Civil Justice. The 13 current cosponsors of the bill are listed here.

The Judiciary Committee chairman is Rep. Bob Goodlatte, R-Va., and the chairman of the Constitution and Civil Justice Subcommittee is Rep. Trent Franks, R-Ariz. Both are known supporters of the proposed constitutional amendment. Nevertheless, even with supportive committee leadership in the last two Congresses, no hearings were held and the amendment never came up for a vote.

No companion bill has been introduced yet in the Senate, although we expect that Sen. Orrin Hatch, R-Utah, will introduce a companion bill around Flag Day this year, which is June 14. 

Congress has tried repeatedly to pass similar restrictions on destroying the flag in the 26 years since the U.S. Supreme Court ruled that flag burning is political expression protected by the First Amendment. The most recent vote on the matter, in 2006, fell one Senate vote shy of the 67 votes necessary to send the measure to the states for ratification. The House passed its version in 2005.

According to news reports, Womack said the previous Senate vote, which occurred before he entered Congress, always bothered him. "It's always just kind of been an aggravating thought to me that our ability to protect the symbol of this nation, to give Congress the authority to protect the symbol of this nation, fell one vote short of going to the states," he said last week.

Womack said the new Republican majority in the Senate and the large Republican margin in the House could make it easier to pass the measure this time. "We've got a much friendlier Senate to deal with. This is an opportunity for us to really make a big statement about who we are as Americans.”

One obstacle this year could be Senate Majority Leader Mitch McConnell, R-Ky., one of three Republican senators who opposed the 2006 effort, and he now leads the Senate. In a 2006 editorial in the Central Kentucky News, McConnell wrote that freedom includes the freedom to burn a flag. "I revere the American flag as a symbol of freedom. But behind it is something larger – the Constitution."

Before the U.S. Supreme Court's 1989 Texas v. Johnson decision, which ruled that flag burning was a constitutionally protected form of political expression, nearly every state had a law banning desecration of the American flag. The court's decision invalidated those laws. Congress quickly passed a federal law to protect the flag, but that was struck down in the court's 1990 United States v. Eichman decision.

"There is not a more symbolic effort that we can make in my strong opinion than ... to answer the decision of the U.S. Supreme Court in 1989," Womack said. "It's a thing that needs to be done, is long overdue. I am a true believer in the Constitution, which is why I'm trying to pursue an amendment to the Constitution to give Congress the authority to protect Old Glory."

American Legion National Commander Michael Helm spoke in support of the measure during his testimony before a joint House and Senate Veterans Affairs hearing during the Legion’s 55th annual Washington Conference last week. House Committee on Veterans’ Affairs Chairman Jeff Miller, R-Fla., and committee member Rep. Tim Walz, D-Minn., urged their colleagues on the committee to cosponsor and support the amendment.

Sincerely,

Jeff Steele

Assistant DirectorLegislative Division