To allow injury or disrespect to the American flag is to protect the freedom it represents, U.S. District Court Judge Lisa Godbey Wood said Wednesday to the Daughters of the American Revolution at their annual Flag Day luncheon.
Wood spoke on two U.S. Supreme Court cases, including West Virginia State Board of Education v. Barnette, decided 75 years ago today.
“In a 6-3 decision, announced, I am sure, not coincidentally on June 14, 1943 — yes, on Flag Day — Justice Robert Jackson writing for the majority … penned for the court a decision that held, in essence, that our country is strong enough, tolerant enough and free enough that we can withstand having a 9-year-old and a 7-year-old not stand up to say the Pledge of Allegiance because of sincerely held religious beliefs,” Wood said.
Attorneys for the state argued that recourse already existed in that the Barnette family, who were Jehovah’s Witnesses, could seek changes of the law and policy through elections and school administrator appointments.
“Justice Jackson said, not in our country — there’s no star so bright in the constellation of the Bill of Rights, there’s no principle more important, (that) some rights are too important to leave to the whims of popularity,” Wood said. “Freedom of life, liberty, freedom of expression, freedom of religion. Those don’t depend on the ballot box. Those are enshrined in the Constitution.
“You see, demanding a pledge of faith, that’s at best futile. It’s at worst, sinister. That’s a little too much like what Hitler was doing, isn’t it? Demanding faith. That’s no faith at all, to demand a pledge. Punishing dissenters is not too far off from eliminating dissenters. A demand for consensus leads to the graveyard.”
The other case, Texas v. Johnson, challenged a state law in Texas that forbade things like the burning of an American flag, which a communist activist proceeded to do outside the Republican National Convention in Dallas in 1984. Similar laws were on the books in 47 other states.
“And a week after Flag Day, in (1989) — June 21, (1989) — the Supreme Court decides 5-4, with Justice Antonin Scalia being that key anchor vote, the fifth vote, the yes,” Wood said. “(Joey) Johnson has a First Amendment right to say the ugliest things. He has a First Amendment right to press that Zippo lighter and send the American flag up into flames.
“(The justices) start by reminding us, of course, the First Amendment protecting speech really is only needed for ugly things. You don’t need a First Amendment to talk about unicorns and butterflies and love and apple pie. The First Amendment really only comes into play to protect ugly things. That’s what it’s there for.”
Wood referenced a column by Time magazine’s Walter Isaacson that ran weeks after the decision, in which he wrote, “Reverence for the flag is ingrained in every schoolchild who has quailed at the thought of letting it touch the ground, in every citizen moved by pictures of it being raised at Iwo Jima or planted on the moon, in every veteran who has ever heard taps played at the end of a Memorial Day parade, in every gold-star mother who treasures a neatly folded emblem of her family’s supreme sacrifice.”
It’s for those reasons, Isaacson said, the court ruled the way it did — as Time’s Lily Rothman recounted 26 years later — the flag is so revered that it represents the freedom to use or abuse it in protest.