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Senate Rejects Flag Desecration Amendment

Charles Babington
WASHINGTON POST

The Senate rejected by a single vote yesterday an effort to amend the Constitution to allow Congress to ban desecration of the American flag, after a two-day debate freighted with political calculations and sharp disputes over the limits of free speech.

The 66 to 34 vote fell just short of the two-thirds majority required to approve a constitutional amendment and submit it to the states for ratification. It marked the latest setback for congressional attempts to supersede Supreme Court decisions in 1989 and 1990. Justices narrowly ruled that burning and other desecrations of the flag are protected as free speech under the First Amendment.

As expected, three Republicans -- Robert F. Bennett (Utah), Lincoln D. Chafee (R.I.) and Mitch McConnell (Ky.) -- voted against the amendment. Fourteen Democrats voted for it. The House approved the measure 286 to 130 last year.

GOP congressional leaders have offered up several measures in recent weeks that are important to their conservative political base -- including an amendment banning same-sex marriage and further cuts in the estate tax -- culminating with yesterday's vote on flag burning.

Polls show that most Americans want flag desecration outlawed, and the amendment's proponents said they were trying to stop justices from thwarting the public's will. They said that burning a U.S. flag in public -- while rare these days -- is a reprehensible insult to the nation's founders and a dishonor to the Americans who died fighting tyranny.

The amendment's opponents agreed that flag burning is repugnant, but argued that U.S. troops died to preserve freedoms that include controversial political statements.

Flag burning "is obscene, painful and unpatriotic," Sen. Daniel K. Inouye (D-Hawaii), who lost an arm in World War II, said in a floor speech yesterday. "But I believe Americans gave their lives in the many wars to make certain that all Americans have a right to express themselves -- even those who harbor hateful thoughts."

Sen. Dianne Feinstein (D-Calif.) summarized the proponents' views. The flag's special symbolic status, she said, makes its desecration different from holding a sign denouncing the president. Burning an American flag in anger, she said, is "conduct, not speech" because the flag is "the symbol of our democracy, our shared values, our commitment to justice, our remembrance to those who have sacrificed to defend these principles."

Behind the constitutional rhetoric were cold political considerations. Republicans are eager to energize conservative voters this fall, and the flag initiative -- even if doomed to fail -- is seen as a sure-fire way to inspire them, especially a week before Independence Day.

The vote is the closest that advocates have come to banning flag desecration in many years of trying. In 2000, the Senate fell four votes short, and supporters had hoped the GOP's 55 to 44 majority -- there is one independent, James M. Jeffords (Vt.) -- would put them over the top this year.

The GOP-controlled House has repeatedly approved the amendment by wide margins, and advocates say they could have handily obtained ratification by three-quarters of the states if the Senate had followed suit.

The debate divided senators along unusual lines. Opposing the amendment was McConnell, the Senate's second-ranking GOP leader, and Bennett, a quiet, mainstream Republican. Democratic supporters included Minority Leader Harry M. Reid (Nev.) and Sen. Evan Bayh (Ind.), a presidential hopeful. Maryland's Democratic senators voted against the amendment and Virginia's Republican senators voted for it.

The amendment's chief sponsor, Sen. Orrin G. Hatch (R-Utah), disputed assertions that the measure was politically motivated and was an unwise use of the Senate's time in the face of war in Iraq, high gasoline prices and a growing federal deficit.

"Fifty state legislatures have called on us to pass this amendment," Hatch told colleagues.

He and his allies had tried for days to pick up one more vote. But virtually all senators had stated their positions publicly, making efforts at negotiation or persuasion fruitless.

The Constitution was last amended -- for the 27th time -- in 1992, when the states belatedly ratified a 1789 bid by Congress to regulate lawmakers' pay increases.

Overturning a Texas law in 1989, the Supreme Court ruled 5 to 4 that burning an American flag in protest is a form of political speech protected under the First Amendment. Congress later passed a federal anti-flag-desecration law, and the high court invalidated it on the same grounds.

Ever since, lawmakers have debated whether flag burning is an unsavory cost of political freedom or something more akin to intolerable hate speech or monument defacement.

"All rights enshrined in the Constitution have certain limits," said Sen. Mel Martinez (R-Fla.). "There is no such thing as unlimited rights. Although we treasure and value our right of free speech . . . we protect our national monuments," including the flag.

But Russell Feingold (D-Wis.) said Congress must "defend the right of all Americans to express their views about their government, however hateful or spiteful or disrespectful those views may be."

The proposed amendment said simply: "The Congress shall have power to prohibit the physical desecration of the flag of the United States."

Before the final tally, the Senate voted 64 to 36 to reject an alternative measure designed to provide political cover for those who opposed Hatch's legislation. The measure -- a proposed statute, rather than constitutional amendment -- was offered by Sen. Richard J. Durbin (D-Ill.) and was strongly endorsed by Sen. Hillary Rodham Clinton (D-N.Y.), a possible presidential candidate who has sought a middle ground in the flag-burning debate.

The proposal would have outlawed flag desecration if the perpetrators were also damaging federal property, trying to incite violence or trying to intimidate someone. Opponents called Durbin's measure a political fig leaf that the Supreme Court would rule unconstitutional.

Hours before the votes were taken, Sen. George Allen (R-Va.) thrust the issue into his reelection campaign. Noting that Democratic challenger James Webb had said he opposed the amendment, Allen's campaign issued a press release linking Webb to Sens. John F. Kerry and Edward M. Kennedy of Massachusetts, who voted against the amendment. The release said Webb is "totally beholden to the liberal Washington senators" who backed him in this month's primary.

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