Is the American Flag a Secular Symbol or a Sacred Icon?

July 30, 1998

By Edward Tabash

Atheists, agnostics, and freethinkers have a vested interest in fighting all forms of censorship. Throughout history, the most egregious forms of censorship have always been directed at the suppression of religious dissent. Heresy and blasphemy have always been the primary historical targets of censorship imposed by a given power structure. We thus have a direct kinship with everyone who chooses to dissent from the prevailing viewpoints of conventional society.

The crown jewel of protecting free expression, at least here in the United States, is the First Amendment. So long as your mode of expression does not physically harm another person or physically damage the property of another, your mode of expression will be protected. The mere fact that onlookers or listeners find your comments or actions to be offensive is not a basis for banning that form of expression. Since its ratifcation in 1791, the First Amendment has stood as the bulwark against censorship. Under the First Amendment, no branch of government can ban or punish blasphemy. Non believers can express their views about religion and never fear criminal prosecution. You can say the most vicious things about the president of the United States and never be thrown into a prison cell.

Now, for the first time in American history, we stand on the verge of amending the First Amendment in order to weaken its majestic and sweeping protection for unpopular modes of expression. The House of Representatives has passed by more than the necessary two thirds majority a proposed amendment to the United States Constitution that would remove constitutional protection from those who burn or otherwise physically desecrate their own individually owned American flags. The Senate is set to vote on this proposed amendment to the Constitution in September. If 67 senators vote for this, it will then have passed the required two thirds vote of both Houses of Congress and will then go the states for ratification. Though President Clinton opposes this amendment, because it is an amendment to the Constitution, he cannot veto this measure. Once it passes both Houses of Congress, it goes directly to the states.

Once before the states, it needs 75% of the state legislatures to vote by a mere majority of each such legislature in order to become part of our nation's Constitution. Since state legislators are much more timid about standing up for principle and are much more timid about going against patriotic fanaticism, than are members of Congress, this amendment will easily obtain the votes of the 38 state legislatures that it needs in order to become an actual part of the Constitution.

So, our only realistic chance of stopping this amendment from weakening the scope of the protections for unpopular expression that the First Amendment has provided for the past 207 years, is to stop it in the United States Senate.

What people don't realize is that it is already illegal to physically damage someone else's flag or the flag on some government property. Vandalism laws already prohibit damaging someone else's property. Thus, this amendment would remove constitutional protection for what you do with your own individually owned American flag. If you sit at a sewing machine and create your own flag and then tear it up or burn it, you could be prosecuted. If you have an American flag tatoo on your butt and go to a nude bathing beach and it gets sunburned, you could be in trouble. If a bad ass biker has an American flag stitched across his leather jacket and gets into a bar fight with another bad ass biker, and the flag gets torn, one or both could face criminal charges.

If atheists go into a bookstore and buy their own copies of the bible and then, at a rally protesting religions dogma, tear up those copies, these atheists are only destroying their individually owned bibles, not bibles that belong to anyone else. This is precisely what happens when some political protestors burn or otherwise destroy their own American flags. All that is being damaged is a person's individually owned replica of the flag. The flags belonging to millions of people and government agencies all over this country remain intact. In fact, the flag, itself, as a symbol, is not harmed by legally allowing some individuals to destroy their personally owned replicas of the flag. We actually desecrate the flag by passing this amendment. It is an insult to the flag for our country to become so oppressive, so dictatorial in suppressing dissenting viewpoints, that we remove constitutional protection from damaging one's privately owned replica of the flag.

Also, for those of us who are concerned about the separation of church and state and the avoidance of elevating objects to an official level of being sacred in what is supposed to be an officially secular society, this amendment borders on a blasphemy law. It removes from constitutional protection the physical "desecration" of an American flag. Desecration is a religious term. If this becomes part of the Constitution, it means that our nation has officially elevated a secular symbol to the level of a sacred icon.

Moreover, once we overcome the initial hurdle of amending the First Amendment for the first time, it will get easier and easier. Whenever the Supreme Court uses the First Amendment to protect a mode of expression that the majority finds distasteful, we will just amend the First Amendment to remove constitutional protection from that mode of expression. Soon, we will carve the First Amendment down to nothing. We don't need a First Amendment to protect that mode of expression which is non controversial. It is precisely that form of expression which the majority despises that needs to be guarded. The Bill of Rights, of which the First Amendment is the first component, was meant to guard against the tyranny of popular majorities. If we remove constitutional protection from those forms of expression which are unpopular, we whittle the First Amendment down to nothing more than an umbrella that is taken away the moment it begins to rain.

Each of us needs to contact the two United States Senators from our respective states. We need to get as many people as possible within every state to contact their U.S. senators. Senators usually only listen to constituents from their home states. At present, the supporters of the amendment have 64 votes. If they pick up 3 more, we lose and the First Amendment is butchered. We must get as many people as we can to contact their two home state U.S. senators and urge them to vote down this proposed amendment to the Constitution.

Fifty five years ago, the United States Supreme Court said: "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..." West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642. It is in the interests of all freethinkers, indeed, all Americans, to preserve intact as the law of the land, this pronouncement from our high court, a lofty sentiment that would be nullified if the flag desecration amendment were to pass. Let us contact our U.S. senators and work to defend the integrity of the Bill of Rights.

Eddie Tabash chairs the outreach committee for the Council for Secular Humanism in Los Angeles and chairs the national Legal Committte of the Washington based Americans United for Separation of Church and State. He is a lawyer in private practice in Beverly Hills California. He can be reached via e-mail at E. Tabash

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