![handle is hein.journals/rjlr9 and id is 1 raw text is: RUTGERS JOURNAL OF LAW AND RELIGION
Volume 9.1 Fall 2007
FLAG DESECRATION, RELIGION AND PATRIOTISM
By: Muriel Morisey*
I. INTRODUCTION
Why are so many Americans tempted to sacrifice the First Amendment guarantee of
freedom of expression in order to protect the flag? The U.S. flag has never been the target of
widespread acts of desecration. Yet the 109th Congress was just one vote short of sending a
constitutional amendment protecting the flag to the states for ratification.' If ratified, the
amendment would modify the Bill of Rights for the first time since its adoption in 1789.2
Though proponents of the amendment deny it,3 the flag protection movement calls for the
*Associate Professor of Law, Temple University, James E. Beasley School of Law. B.A.,
Harvard University, J.D. Georgetown University Law Center. This essay benefited from the
comments of my Temple colleagues, Rebecca Alpert, Rick Greenstein, David Kairys, Laura
Little, Mark Rahdert and Wendy Kaminer. Keyur Shah and Karl Crow provided invaluable
research assistance. This work was also aided by legal assistant Josette Oakley's energy and
high competence. I am grateful to Dean Robert J. Reinstein for all of the ways he has supported
my work.
1 On June 27, 2006 the U.S. Senate rejected a constitutional amendment resolution with a 66-34
vote, which is one vote short of the two-thirds majority required for such resolutions. Senate
Joint Resolution 12 was identical to House Resolution 10, which passed the House of
Representatives on June 22, 2005 in a 312-120 vote. In the 110th Congress two constitutional
amendments have been offered, H.R.J. Res. 9 (Jan. 5, 2007) and H.R.J. Res. 12 (Jan. 11, 2007).
No such resolutions had been introduced in the Senate as of September 14, 2007.
2 The amendment does not do so by its express terms but is a response to the Supreme Court's
conclusion in United States v. Eichman. 496 U.S. 310 (1990) (striking down a federal statute
criminalizing flag desecration); see discussion infra Part II; H.R. Rep. No. 109-131 (2005).
3 As the Senate began to debate Senate Joint Resolution 12, Senator Arlen Specter (R-PA), the
floor manager of the resolution, stated:
It is important to note that there have been many decisions by the Supreme Court
of the United States which have limited freedom of speech under the first
amendment . . . . '[Some] utterances are no essential part of any exposition of
ideas, and are of such slight social value as a step to truth that any benefit that](ViewImageLocal?handle=hein.journals/rjlr9&div=1&collection=&method=preview&ext=.png&size=3)
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