Constitution Daily

Smart conversation from the National Constitution Center

When Supreme Court Justices Have Disagreed About the American flag

September 27, 2018 by Scott Bomboy

 

Should Americans be forced to pledge allegiance to the American flag or be allowed to deface the flag as a sign or protest? What does the Constitution say about it? These issues and more concerning the flag have been a hotly debated topic among Supreme Court Justices since the World War II era.

At least five Supreme Court decisions since then have dealt with American flag-related issues. The first two cases about the Pledge of Allegiance to the flag presented an extreme case at the Court, with the Justices deciding one case one way, and then three years later, reversing their own decision.. A third case in the 1970s overturned a Massachusetts law banning the wearing of a small flag on a pair of jeans. And two controversial cases in 1989 and 1990 resulted in decisions allowing protesters to burn the American flag under certain circumstances, as a right protected by the First Amendment.

The opinions in these decisions reveal that Justices considered “liberal” and “conservative” have fallen on different sides of the flag question. For example, Justice John Paul Stevens, widely considered a liberal justice, strongly condemned the Court’s 1989 decision to allow flag burning in the Texas v. Johnson case, joining with other conservative justices including Chief Justice William Rehnquist.

And although he didn’t write an opinion in that case, Justice Antonin Scalia voted with the majority of the Justices to permit flag burning. In a 2012 CNN interview, Scalia explained why. “If I were king, I would not allow people to go around burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged—and it is addressed in particular to speech critical of the government. That was the main kind of speech that tyrants would seek to suppress.”

The cases are discussed in greater detail below based on the type of issue about the flag presented.

Cases About The Pledge

Two cases from the 1940s included some of the most-powerful words ever written about the First Amendment and the flag’s importance to American culture.

In the 1940 case of Minersville School District v. Gobitis, two children who were Jehovah’s Witnesses were expelled from a Pennsylvania public school for not participating in the Pledge of Allegiance to the flag. The Supreme Court sided with the school’s decision to expel them. Justice Felix Frankfurter wrote in the majority opinion that “conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.” Justice Harlan Stone was the only dissenter in the decision, mostly on religious grounds.

Three years later, however, the Court in a 6-3 vote reversed the Minersville decision in West Virginia State Board of Education v. Barnette. Justice Robert Jackson, who had replaced Stone on the bench, systematically disassembled Frankfurter’s reasoning in his majority decision. Jackson said the First Amendment barred forced allegiance to the American flag, concluding with a landmark quote: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”

Justice Frankfurter responded in dissent in an unusually blunt passage that cited his own Jewish heritage. “One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant, I should wholeheartedly associate myself with the general libertarian views in the Court's opinion,” Frankfurter said.  “But, as judges, we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution.”

Frankfurter argued that the Court had considered the same question five times before, reaching the same conclusion, and that Jackson’s opinion conflicted with a state’s right to pass its own laws. “I cannot bring my mind to believe that the ‘liberty’ secured by the Due Process Clause gives this Court authority to deny to the State of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship,” Frankfurter said.

Cases About Desecration

The 1974 decision in Smith v. Goguen featured a different flag debate. In the 6-3 majority decision, Justice Lewis Powell said Massachusetts couldn’t jail a man for wearing small cloth version of the United States flag sewn to the seat of his jeans, as violating a law prohibiting “publicly . . . treat[ing] contemptuously the flag of the United States.” Powell said the law was unconstitutional because it was vague, and his decision didn’t deal with First Amendment issues about flag desecration.

But Justice Byron White, a former NFL football player, said the Constitution allowed for laws that prevented acts like American flag burning. “There would seem to be little question about the power of Congress to forbid the mutilation of the Lincoln Memorial or to prevent overlaying it with words or other objects. The flag is itself a monument, subject to similar protection.”

Chief Justice William Rehnquist added his own words in the Goguen dissent about the flag. “The significance of the flag, and the deep emotional feelings it arouses in a large part of our citizenry, cannot be fully expressed in the two dimensions of a lawyer's brief or of a judicial opinion,” he said.

Those ideas were tested in the Court’s ruling in Texas v. Johnson.

In the Texas v. Johnson case, the Court voted 5-4 in favor of Gregory Lee Johnson, who had burned a flag in protest at the Republican National Convention in Dallas in violation of a state law. Johnson’s actions, the majority said, were protected symbolic speech, political in nature, and could be expressed even at the affront of those who disagreed with him.

“Johnson was convicted for engaging in expressive conduct. The State’s interest in preventing breaches of the peace does not support his conviction because Johnson's conduct did not threaten to disturb the peace,” said Justice William Brennan. “Nor does the State's interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression.”

Justice Anthony Kennedy concurred with the majority decision. “Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit,” Kennedy explained. “But whether or not [Johnson] could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution.”

Justice Stevens’s powerful dissent concluded with a defense of the American flag as a unique symbol. “The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for—and our history demonstrates that they are—it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration,” Stevens said.

Congress responded to the Court’s decision by passing a federal anti-flag burning law called the Flag Protection Act of 1989. But in 1990, the Supreme Court also struck down that law as unconstitutional in United States v. Eichman.

“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,” wrote Justice Brennan, citing Johnson.

Scott Bomboy is editor in chief of the National Constitution Center.

 

Sign up for our email newsletter