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Flag-burning amendment back again

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WASHINGTON — Shrugging off a succession of defeats, those who believe the flag should be protected by the Constitution are again taking their case before Congress.

As in the past, the House is expected to vote in favor of a constitutional amendment Tuesday and send it to the Senate, where it probably will be defeated by lawmakers who say saving free speech rights is more important than saving flags from desecration.

Three times in the past six years, in 1995, 1997 and 1999, the House came up with the two-thirds majority on the flag issue needed to amend the Constitution. In each of two votes in the Senate, in 1995 and 2000, supporters reached only 63 votes, four short of the necessary total.

Three-fourths of state legislatures also must approve a constitutional amendment. The document has been amended only 27 times in the nation's history, including the 10 articles of the Bill of Rights.

The proposed amendment, sponsored by Reps. Randy "Duke" Cunningham, R-Calif., and John Murtha, D-Pa., states simply: "Congress shall have power to prohibit the physical desecration of the flag of the United States."

Official efforts to protect the flag began at least as early as the 1890s. In 1897, Pennsylvania made it a crime to "damage or destroy" the Stars and Stripes.

In 1968, reacting to Vietnam War protests, lawmakers made defiling the flag a crime. The Supreme Court ruled by a 5-4 vote in 1989, however, that burning the flag is protected under the First Amendment. The federal law and flag-burning statutes in 48 states were overturned.

Congress responded by passing a federal statute to protect the flag, but in 1990 the Supreme Court, again by 5-4, ruled that statute also was unconstitutional.

"We continue to press to change minds and hearts on this particular issue," said Marty Justis, executive director of the Citizens Flag Alliance, an affiliate of the American Legion and other groups that leads the amendment fight. "It's never been a question of if, but a question of when."

Justis admitted that the hurdles may be higher this year with the Democrats' takeover of the Senate. Most Democrats, including Majority Leader Tom Daschle, D-S.D., oppose such an amendment. Perhaps more important, Sen. Patrick Leahy, D-Vt., a leading opponent, has replaced Sen. Orrin Hatch, R-Utah., one of its leading advocates, as chairman of the Judiciary Committee.

Gregory Nojeim, chief legal counsel for the American Civil Liberties Union, expressed hope the Senate will refuse to consider the amendment if it clears the House.

The ACLU and other opponents argue that the amendment represents a solution in search of a problem. Cases of flag desecration are rare, they contend, and defining desecration — could it apply to ties or T-shirts with flag designs? — is too difficult.

"Freedom can't survive if exceptions to the First Amendment are made whenever someone in power disagrees with an expression," he said.