Will it be deja vu all over again? In 1989, Gov. Roy Romer was preparing a re-election campaign. The state legislature was in special session. The U.S. Supreme Court in an opinion written by Justice Antonin Scalia had declared a Texas law on flag burning unconstitutional. The court then ruled against a congressional attempt to circumvent the First Amendment to punish flag desecration.
Romer added an item to the special session "Concerning a resolution honoring the flag." It was win-win for Romer. The Republicans could not use the flag as a campaign issue, and the resolution's passage would not affect the court decision.
This year, Gov. Bill Owens is preparing a re-election campaign. A special session of the legislature begins Sept. 20th. The U.S. House in 2001 passed a resolution to amend the constitution to provide: "The congress shall have power to prohibit the physical desecration of the flag of the United States."
Will Owens put a "resolution honoring the flag" on the legislative agenda? Owens can add items to the "call" anytime during the special session. Chances are more Democrats than Republicans would vote against giving Congress power to ignore the Bill of Rights, just as they did in 1989. A "no" vote by Democrats could be used in future campaigns.
However, there is one Republican legislator who won't vote for the resolution. He showed courage as the Republican candidate against Romer in the 1990 election for governor, releasing a letter published in major newspapers stating:
"All other civilizations around the world, despite their good points, are built on the opposite and dangerous teaching that something else is more sacred than the individual human being. It might be an abstraction, a theory, a symbol, a certain category of physical objects. It might be an infallible church, the all-powerful state, or even -- this is the tricky one -- the democratic will of the majority.
"This doctrine is dangerous because it seems to justify depriving individuals of life, liberty and property in an ever-increasing web of central control. Regardless of good intentions or persuasive excuses, the doctrine is a slippery slope that sooner or later lands in just one destination: tyranny.
"The United States Supreme Court did all of us a favor in its courageous decision that flag-burning, while despicable, should not be criminal. No political symbol is more sacred than individual freedom." The author? Senate Republican minority leader, John Andrews.
The Colorado resolution in 1989, SJR 2, urged a U.S. constitutional amendment to protect the flag from conduct otherwise shielded by the First Amendment. But there was more:
"Reverence regarded for the American flag by Americans as a whole should transcend individual social, political, and philosophical beliefs." The House disliked that, struck it, and sent the resolution back to the Senate. The Senate refused to budge. The House caved in.
Colorado dealt with part of the issue in 1973. Our Supreme Court unanimously overturned conviction of a man arrested on a Boulder street. A portion of the American flag was sewn on the seat of his blue jeans.
The court declared CRS 18-11-204 (1) (a) unconstitutional as it: "...limits the expression of ideas about the flag to patriotic expression, acceptable to those charged with enforcement of criminal laws, attempts to impress a symbolic orthodoxy upon people of Colorado, and is contrary to the fundamental values protected by the First Amendment." Justice Donald Kelley, a former Republican state senator, wrote that decision.
The 1973 language declared unconstitutional remains on the statute books. No legislator has dared try to remove it.
Another try by Congress in 1990 died in the court. In 1991, our legislature passed HJR 1022 again urging Congress to remove flag desecration from protection under the Bill of Rights. It also passed HJR 1012 declaring the legislature's dedication to "honor, promotion, preservation and public awareness of the Bill of Rights." Go figure.
Owens was Senate co-sponsor of SJR 2 and HJR 1022. If he does put the issue before the legislature, hopefully members will recall the words of Justice Brennan in the 1989 Supreme Court decision:
"We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag-burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by according the remains a respectful burial. We do not consecrate the flag by punishing the desecration, for in doing so we dilute the freedom that this cherished emblem represents."
(Jerry Kopel served 22 years in the Colorado House of Representatives.)
Copyright 2015 Jerry Kopel & David Kopel