Reflections on the Flag-Burning Case

One of my jobs as a summer reporter for the The Berkshire Eagle during my college and law school years was to cover the Fourth of July parade in Pittsfield, Massachusetts. This day-long assignment in stifling heat was not coveted by the regular newsroom staff, and so it routinely fell to me as low person on the totem pole.

In my memory, all of these occasions now are blended into one big parade, except for the time I sat next to Norman Rockwell in the reviewing stand. When the head of the procession, American flag held high, passed in front of us, Rockwell, himself already a national symbol of sorts, leaped to his feet, placed his hand over his heart, and called out, “Long may she wave!” The rest of us rose too as the first flag passed by. What we did not anticipate was that our illustrious neighbor would stand to salute the flag every single time one passed. There were a lot of American flags in a Fourth of July parade in those days. But, after some initial confusion, we all followed suit. The old man gave us quite a workout.

With nearly thirty years distance from that event, what strikes me now is that Rockwell’s feeling about the flag, or at least his way of expressing it, was even then out of sync with the sentiments of most of his fellow Berkshire County residents. All in the reviewing stand were slightly discomfited by Rockwell’s repeated manifestations of civic piety. I am sure that what drove most of us to our feet after the initial salute had less to do with the flag than with the concern of some of us that Rockwell should not be left standing alone and of others that they should not be embarrassed by remaining seated once nearly everyone else was standing.

This is not to say we were indifferent to the flag. Still, as I recall all those parades, it seems to me that the things that moved us were rather more personal. Besides the stirring martial music and the fun of seeing friends and relatives marching, there was the serious part of the parade—groups of veterans in uniform, middle aged and elderly survivors of the nation’s wars and military adventures, whose justice we did not then question. The Fourth of July, marking the beginning of a war of independence, belonged in an important way (as did Memorial Day) to our local American Legionnaires and the Veterans of Foreign Wars. Of all the people who have been distressed by the Supreme Court’s decision in the flag burning case, the most deeply and personally aggrieved are probably the nation’s veterans and their families. Yet, even for these, it’s been a long, long way from Iwo Jima to Saigon and beyond.

Now, in the new post–Vietnam America, there comes before the nation’s highest court a case involving sacrilege against the principal symbol of our civil religion. The legal issue, strictly speaking, was a rather narrow one. Several years ago, the Court had decided that civil blasphemy was protected by the First Amendment (i.e., that the state could not constitutionally punish verbal disrespect for the flag). It had also extended constitutional protection to certain disrespectful behavior toward the flag (i.e., wearing the flag on the seat of one’s pants.) Was burning the flag in a different category? In deciding that it was not, the majority made clear that flag burning which tended to provoke an immediate breach of the peace would still be punishable under state laws.

Something more profound than distinctions among various ways of expressing contempt must account for the emotion elicited by the Court’s decision that flag burning, too, was within the scope of protected freedom of expression. Yet it is hard to zero in on what that something is. The four judicial opinions in the case, the arguments of the state of Texas and of the defendant, Gregory Johnson, as well as press reports of the reactions of the citizenry to the decision reveal a remarkable lack of consensus on what the flag means. To the defendant it is a symbol of oppression and evil (“Red, white, and blue, we spit on you”). To the State of Texas, it is a symbol of “nationhood and national unity.” To constitutional law scholar Laurence Tribe, it is an “emblem of unity and diversity.” To Justice Brennan, writing for the majority, it symbolizes our principles of freedom, inclusiveness, and tolerance of dissent, and thus protects the very behavior that defiled it. But Justice Stevens, in a strange loop dissent, also saw the flag as a symbol of freedom and tolerance, yet considered that was precisely why it should be protected from “desecration.”

The range of popular reactions was even wider. One witness to the flag burning reverently collected its remains and buried them in his backyard. Another bystander, interviewed on National Public Radio, said, “The way I see it, I buy a flag, it’s my property. I can burn it.” An American Legion spokesman who opposed the decision, when asked on the Today Show to say precisely what the flag symbolized, replied, in a simplified version of the Stevens strange loop, “It stands for the fact that this is a country where we can do what we want, where we have the right to do what we want.”

What is one to make of the degree to which those who would make flag burning a crime resort to religious language in describing the flag and the offense against it? The section of the Texas Penal Code under which the defendant was prosecuted is titled, “Desecration of a Venerated Object.” The venerated objects protected by the statute include not only the national flag, but also the Texas flag, public monuments, and places of worship and burial. In his dissent, Chief Justice Rehnquist referred to the “almost mystical reverence” and “the uniquely deep awe and respect for our flag felt by virtually all of us.”

Not everyone is comfortable with speaking about the flag in terms usually reserved for religious matters, or with according “mystical reverence” to secular symbols. Johnson’s lawyer pointed out that in National Socialist Germany, the swastika was protected from desecration. Is it possible that what is disturbing to devotees of civil religion about the flag burning decision is that we are increasingly aware of the difficulty in specifying any meaningful shared content to the symbol? Despite the spectacle of politicians falling over themselves to rally ‘round the flag, it is doubtful that there is any substantial American consensus on what the flag symbolizes, because it is becoming hard to specify in what sense this increasingly heterogeneous country is a “nation.”

Further, it is unlikely that a contrary decision in the flag case, or the passage of a statute, or adoption of a constitutional amendment could ever settle these matters. A shared sense of the meaning of the flag has vanished from the national scene along with the small town life that Norman Rockwell knew, idealized, and immortalized. Civil society has become more complex, with national political boundaries becoming less relevant to economic activity and the flow of commerce, and with many Americans defining themselves in relation to a region, a race, a religion, or other group before identifying with the nation.

The civil religion is in a period of upheaval. Whether the outcome is to be reformation or decline, no one can say. The crisis of faith has brought forth many who are attached to a past that can never be retrieved, or that perhaps never was—at least not in quite the way they imagine it. It has brought out others who delight in destruction and irreverence for their own sake. At best, it has given rise to civil conversation about the goals our society is to pursue.

Meanwhile, the job of protecting the national symbol has been shifted from law to other social norms: custom, convention, disapproval. As the pub philosopher Andy Capp once remarked, “The difference between law and custom is that it takes a helluva lot more nerve to violate a custom.”

Mary Ann Glendon is professor of law at Harvard Law School. Her most recent book is The Transformation of Family Law.