Flag Desecration Amendment - Judicial and Legislative History

Judicial and Legislative History

The first federal Flag Protection Act was passed by Congress in 1968 in response to protest burnings of the flag at demonstrations against the Vietnam War. Over time, 48 of the 50 U.S. states also enacted similar flag protection laws. All of these statutes were overturned by the Supreme Court of the United States by a 5-4 vote in the case Texas v. Johnson, 491 U.S. 397 (1989) as unconstitutional restrictions of public expression. Congress responded to the Johnson decision by passing a Flag Protection Act, only to see the Supreme Court reaffirm Johnson by the same 5-4 majority in United States v. Eichman, 496 U.S. 310 (1990), declaring that flag burning was constitutionally-protected free speech.

In both cases, William J. Brennan wrote the majority opinion, joined by Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony Kennedy (Kennedy also authored a separate concurrence in Johnson), and the dissenters in both cases were then-Chief Justice William Rehnquist (who authored a dissent in Johnson), and Justices John Paul Stevens (who authored dissents in both cases), Byron White and Sandra Day O'Connor.

The decisions were very controversial and have prompted Congress to consider the only remaining legal avenue to enact flag protection statutes — a constitutional amendment. Each Congress since the Johnson decision has considered creating a flag desecration amendment. From 1995 to 2005, beginning with the 104th Congress, the proposed amendment was approved biennially by the two-thirds majority necessary in the U.S. House of Representatives, but it consistently failed to achieve the same constitutionally-required super-majority vote in the U.S. Senate (during some sessions, the proposed amendment did not even come to a vote in the Senate before the expiration of the Congress' term). The last time it was considered, in the 109th Congress, the Amendment failed by one vote in the Senate.