Flag law burns in Senate
July 1, 2006
Orrin Hatch went to Arlington National Cemetery, with its famous rows of white gravestones, a little more than a year ago for the funeral of his brother-in-law, a Marine veteran.
In the cemetery, seen by lots of Americans as some of the country’s most hallowed ground, taking a place with spots like Gettysburg and Pearl Harbor, American flags are prevalent, telling symbolic stories off those interned there.
Hatch sees the sacrifices as reasons why people should not be allowed to desecrate the American flag, a practice that disgusts the longtime Republican senator from Utah, who on Tuesday was defeated as he tried to advance a constitutional amendment banning the practice.
Hatch’s flag-desecration amendment failed by one vote in the Senate after it previously cleared the House of Representatives. Sixty-six senators voted for the Hatch resolution and 34 voted ‘Nay.’ Robert Bennett, Utah’s other senator, also a Republican, voted against the Hatch resolution.
"Anybody that does that really ought to be punished for it. First of all, they should not desecrate our national symbol," Hatch says, even as the resolution was heading toward defeat. "My brother died fighting for that. My brother-in-law died fighting for that. I buried another brother-in-law in Arlington Cemetery."
Hatch is the Senate’s chief supporter of an amendment to the Constitution, continually pushing for the measure, but has never successfully pulled together a big enough bloc of votes, 67, for it to clear the Senate and be put to the states.
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Locally, the flag amendment did not seem to gather lots of interest from regular Parkites but at least once in recent years a dispute unfolded in Park City regarding the desecration of a flag.
In 2003, as the Bush administration launched the Iraqi war, Beth Fratkin, a Parkite who lives off Deer Valley Drive and an expert in constitutional free-speech rights, spray-painted a black peace sign on an American flag and hung the flag outside her house. Three flags were stolen, she says.
It drew attention from a visitor who contacted the Park City Police Department. The police approached Fratkin based on a 1970s Utah law that made it a crime to desecrate an American flag but City Hall attorneys declined to prosecute her since the Supreme Court, in a landmark 1989 decision, ruled that desecrating an American flag is protected through the First Amendment guarantees of freedom of speech.
The Supreme Court decision, the attorneys acknowledged at the time, trumps the state law.
Fratkin, who teaches a First Amendment class at the University of Utah, says that the flag with the peace sign spurred discussions about the Iraqi war. She is pleased with the Senate’s vote against the amendment, saying that flag desecration is, "a form of symbolic speech."
"The flag stands for freedom. We should not be curtailing freedom to speak out," Fratkin says, adding, "It calls attention to problems in society and it gets discussed."
‘Power to prohibit’
The amendment that the senators turned down contained 17 words, a simple and direct statement: "The Congress shall have the power to prohibit the physical desecration of the flag of the United States."
Hatch says that the amendment would have been interpreted very narrowly so as not to infringe on First Amendment rights. He wants an amendment that would bar people from burning the flag with contempt, defecating on it or urinating on the flag.
"It shouldn’t be something that is so broad that it covers clothing and all kinds of other things. It should be a very strict, narrow definition that clearly attacks wholly unjustified acts against the flag," Hatch says.
Observers and Hatch saw 2006 as perhaps the amendment’s best chance to clear the Senate but critics have said that the timing of this year’s vote was politically motivated, an effort to rally conservatives as Election Day nears.
Hatch dismisses the argument that the amendment debate was an attempt to sway voters toward the GOP.
"Anybody who tries to make a partisan issue out of it or a political issue out of it I think is not only missing the point but I think deliberately trying to use that to stop what ought to be done readily," he says.
He says that the amendment would have restored the power to protect the flag to regular Americans and moved that power away from the judiciary, saying in a prepared statement after the defeat, "it’s a message to activist judges that enough is enough."
Supreme Court justices, not elected leaders, decided that the First Amendment protects flag desecration, Hatch argues, saying that most Americans agree with his opinion.
"This amendment is a way for Congress to stand up and say to the Supreme Court we won’t sit idly by when you usurp the power of the people," he says in the prepared statement.
Hatch says he plans to return to the issue.
"This is a setback, but it’s not a final defeat," Hatch says. "For protecting the Stars and Stripes, I will not give up and I will not surrender."