In Depth: Sen. Orrin Hatch (R-UT), a sponsor of past legislation to ban flag desecration, explained that passing the amendment would overturn a Supreme Court decision that allowed flag desecration and:
“restore the Constitution to what it was before unelected jurists changed it five to four. Five lawyers decided 48 states were wrong.”
Former Sen. Daniel Inouye (D-HI) explained that his opposition to legislation that would prohibit flag desecration is based on the right to freedom of expression:
“This objectionable expression is obscene, it is painful, it is unpatriotic. But I believe Americans gave their lives in many wars to make certain all Americans have a right to express themselves, even those who harbor hateful thoughts.”
Of Note: In 1989, the Supreme Court ruled that laws which criminalized desecrating the flag were unconstitutional because they violated the the right to freedom of speech under the First Amendment. Within a year, President Bush had proposed a constitutional amendment that would have banned flag burning as a way to circumvent the Supreme Court decision, but again, the Supreme Court ruled that the law was unconstitutional.
There have been many, many attempts to ban flag desecration. This bill has a companion in the House and was preceded by identical bills in the House and Senate from 2013. Those bills were preceded by two identical bills in House and Senate in 2011, which came after two identical bills in the House and Senate from 2009. Other attempts at banning flag desecration were made in 2008, 2007, 2006, and 2005. In 2006, the Senate rejected the flag desecration amendment by only one vote after the House passed it by a wide margin, with current Senate majority leader Mitch McConnell voting against the amendment.
Summary by: Chris Conrad
(Photo Credit: Flickr user ftmeade)