It Offends Me, Therefore It Should Be Illegal: The Misguided Attempt to Ban Flag Desecration, Part 2

On a related note, I would like to address an argument that is quite farcical but has nonetheless come up. “How can you see flag desecration is a matter of freedom of conscience,” some people say, “When conservative Christian bakers have to make weddings cakes for gay couples [in some states, anyway.]” Well, it’s really very simple. Flag desecration is a form of political protest involving the destruction of an object that you personally own. (And if you don’t own the flag, desecrating it is covered under anti-theft/destruction of personal property laws.) A bakery refusing to make a cake for a same-sex couple involves a business denying service to some customers based on sexual orientation. If a liberal politician were to call for a ban on burning rainbow flags, the analogy would hold up from a legal standpoint (though I would consider it much more offensive than burning an American flag due to the implicit bigotry that would generally be involved). But burning a rainbow flag is legal in all fifty states, and I have yet to see a liberal politician call for outlawing it.

Additionally, from a pragmatic standpoint, consider the practical pitfalls of banning flag desecration. Many Americans, particularly those from historically marginalized and oppressed groups, feel that the United States has showed its true colors by electing Trump, proving that this is still a bigoted, cruel, oppressive, shameful nation. Banning flag desecration would be essentially making their argument for them by restricting their ability to protest. Furthermore, such a law would make the U.S. appear thin-skinned and prone to sweeping discontent under the rug. Nothing makes for bad P.R. quite like sending the message that you have large numbers of people angry enough to burn a flag and that your response is to muzzle them.

The final point is that it is important to note that Trump’s stance is not an anomaly in the Republican Party. Since 1989, conservatives/Republicans have generally voted in favor of proposed anti-flag burning legislation at a much higher rate than Democrats. In 1989, Republican Senators voted for a proposed anti-flag burning amendment 37-18, while Democrats rejected it 33-11. In 1995, the amendment received 219 “ayes” and only 12 “nays” from House Republicans, while House Democrats rejected the measure 107-93. In the Senate, a similar pattern was obvious. Republicans who participated voted “yay” 49-4, while Democrats voted “nay” 32-14. In these early roll calls, a significant number of the Republicans who voted “nay,” including Jim Kolbe, Robert Packwood, Wayne Gilchrest, Jim Jeffords, Christopher Shays, John Chafee, and Jim Leach, were moderate “Rockefeller Republicans,” while a significant number of Democratic “yay” votes came from moderate and conservative Democrats such as Robert E. Cramer, Howell Heflin, Ralph Hall, Robert Byrd, Ernest Hollings, Jimmy Hayes, and John Murtha. These votes were not anomalies. In 1997, House Republicans voted for a flag desecration amendment 210-13, while Democrats split their votes evenly. In 1999-2000, another flag desecration amendment was supported by House Republicans 210-10 and Senate Republicans 51-4 and opposed by House Democrats 113-95 and Senate Democrats 33-12. In 2001, House Republicans voted “yay” 207-11, and Democrats voted “nay” 113-90. In 2003, House Republicans voted “yay” 214-11, Democrats “nay” 113-86. Finally, in 2005-2006, Republicans voted “yay” 209-12 in the House and 52-3 in the Senate, while Democrats “nay” 117-77 in the House and 30-14 in the Senate. One of the Republican Senators to vote “nay,” Lincoln Chafee, eventually left the party, became an Independent, and endorsed Obama twice before becoming a Democrat. Esteemed figures in the GOP Establishment, such as both George Bushes, Newt Gingrich, Bob Dole, John Kasich, Lindsey Graham, and Paul Ryan have endorsed or voted for gutting the First Amendment. So too did Tea Party figures such as Trent Franks, Phil Gingrey, Jim DeMint, and Mike Pence. Even Ron Paul, who spoke out against a flag desecration amendment as a Representative, stated that individual states had the right to ban it. Conservative pundits such as Sean Hannity and Ben Shapiro claimed to hate “political correctness” while calling for anti-flag burning legislation because it offended them. The editors of National Review endorsed a ban in 2006. In a Gallup poll that same year, an admittedly large number, 60%, of Democrats endorsed a flag burning amendment. But it was still markedly lower than the 73% of Republicans who were supportive. And this understates the divide between self described liberals and conservatives; 71% of conservatives wanted the amendment, while only 47% of liberals did. So Trump’s stance puts him well within the mainstream of American conservatism. Maybe their parents just emotionally coddled them.

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