Opponents of the flag protection amendment have argued that the flag is merely a piece of cloth and lacks the status necessary to receive constitutional protections. In fact, as reflected in various federal statutes and presidential proclamations, the flag has historically been afforded a special status under law and has been accorded a high level of respect. In the words of Justice Abe Fortas - one of the leading proponents of individual rights and liberties on the Supreme Court who viewed flag protection as consistent with free speech protections in the First Amendment - "The flag is a special kind of personality. Its use is traditionally and universally subject to special rules and regulations. A peson may "own a flag", but ownership is subject to special burdens and regulations." (Street vs New York, 394 U.S. 576, 615-17 (1969). Indeed as Justice William Brennan indicated in Texas vs Johnson, "We do not doubt that the government has a legitimate interest in making efforts to "preserve the national flag as an unalloyed symbol of our country." (491 U.S. 397, 418 (1989)(citing Spence vs Washington, 418 U.S. 405, 412 (1974). The unique character of the flag, as articulated by Justices Fortas and Brennan, can be seen in light of the following federal laws:

- Ceremonies and patriotic customs related to the flag have been codified under federal law, thus manifesting the flag's inherent value. The pledge of allegiance to the flag (36 U.S.C., para 172 (1994), the national anthem sung in the presence of the flag and various patriotic organizations devoted to celebration of the flag, have all been codified under federal law because of their historical and symbolic significance to the country and its people. Indeed, the flag has been deemed important enough to America to merit its own annual day of celebration - Flag Day - Proclamation No. 4757, 45 Fed. Reg. 31,695 (1980); Proclamation No. 7009, 62 Fed. Reg. 31,699 (1997). These federal laws set the standard of respect that has been accorded the flag.

By law and custom, the flag is flown in times of national celebration and mourning in symbolic reflection of the nation's spirit. Federal law and Presidential proclamation urge that the flag be flown on all national holidays such as Memorial Day (half staff), Veterans' Day, President's Day, Mother's Day and Father's Day. (36 U.S.C. 140-170, 174 (1994). As a nation-wide gesture of respect, the flag flies at half-staff in honor and remembrance of the memories of those who served our country. Proclamation No. 3044, 19 Fed. Reg. 1,235 (1954) as amended by Proclamation No. 3948, 34 Fed. Reg. 19,699 (1969), reprinted in 36 U.S.C. 175 (1994). In addition, the flag flies at half-staff in times of national grievance, such as the Oklahoma City bombing, as a demonstration of American solidarity. Proclamation No. 6786, 60 Fed. Reg. 19,999 (1995). In this way, at home and abroad, in times of crisis and celebration, the flag represents a barometer of national circumstance.

- The flag represents our living nation and thus, under federal law, is accorded a high level of reverence. Federal law states that the flag of the United States should be shown no disrespect. (36 U.S.C., para 176) (1994). It should not dip to any persons or thing. No foreign flag appearing with the American flag may be placed in a position of equal or superior prominence. In fact, when displayed, the flag should be held aloft with its folds falling free, never touching the floor, water or objects beneath it. The flag should never be stored, used or displayed in such a way that it could be soiled or damaged. The only way that a flag may be destroyed is if it is burned or put to rest in a suitably dignified manner.

- According to federal law, both abroad and at home, the flag is flown atop federal buildings, U.S. embassies, U.S. consulates, schools and ships on international waters. The sight of the American flag flying atop such buildings and vessels demonstrates that they are safe havens for Americans. Abroad, these buildings and vessels effectively become extensions of the United States beyond our soil, with the flag, as at home, embodying our freedoms and commonalities. See Proclamation No. 4131, 37 Fed. Reg. 9311 (1972), reprinted in 36 U.S.C. para 174 (1994)(emphasizing how important it is for returning citizens and foreign visitors to be welcomed by the U.S. flag at American ports of entry.) Defense Secretary Caspar Weinberger described the U.S. military practice of "reflagging" ships in the Persian Gulf in similar terms. "We obviously feel a particular obligation to ships carrying the American flag....We believe they are entitled to the kind of protection that we give all our citizens."

-Conduct during the playing of the national anthem, the reciting of the pledge of allegiance, and the hoisting or lowering of the flag is dignified and respectful by custom and law. By federal law, citizens, during the national anthem, pledge of allegiance and hoisting or lowering of the flag, should stand at attention, place their right hands at the left shoulder over their hearts, and men remove their hats. (36 U.S.C. para 171, 172, 177 (1994) Persons in uniform should face the flag and render the military salute during these occasions. Even in the flag's absence, citizens are encouraged to act in the same dignified manner as if the flag were there.

The time and occasions for display of the flag are those befitting a revered national icon. Under federal law, the flag should only be displayed during the day, from sunrise to sunset. (36 U.S.C. para 174(a)(1994) Because darkness should never fall on our nation, the flag may only be displayed at night if there is appropriate illumination. To achieve a special nighttime patriotic effect, the flag is displayed at night at the White House and Washington Monument with the proper lighting. Proclamation No. 4000, 35 Fed. Reg. 14,187 (1979), reprinted in 36 U.S.C. para 178 (1994) Proclamation No. 4064, 36 Fed. Reg. 12,967 (1971), reprinted in 36 U.S.C. para 174 (1994). Amond the most meaningful occasions for display of the flag is when it covers the casket of one who has died in service for our country. 38 U.S.C.A. 2301 (1986 & Supp 1997). Later, when presented to a family member or friend of the departed, the flag represents an expression of respect, honor and remembrance.

With these federal laws, both Congress and the President have deemed the flag worthy of special attention because of its special quality. While none of these federal laws or presidential proclamations protect the flag from desecration, they do affirm that the flag is a special national symbol transcending the mere cloth from which it is woven and, therefore, deserving of constitutional protection.

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