Senate narrowly turns back flag amendment

WASHINGTON — The Senate on Tuesday rejected by one vote an effort to amend the Constitution to allow Congress to ban desecration of the U.S. flag, after a two-day debate freighted with political calculations and disputes over the limits of free speech.

The 66-34 vote fell just short of the two-thirds majority — 67 — required to approve a constitutional amendment and submit it to the states for ratification.

Republican congressional leaders have offered several measures in recent weeks important to their conservative political base, including an anti-gay-marriage amendment and further cuts in the estate tax, culminating with Tuesday's vote on flag burning.

Polls show most Americans want flag desecration outlawed, and the amendment's proponents said they were trying to stop unelected justices from thwarting the public's will.

They contend that burning a U.S. flag in public, even though it rarely happens these days, is a reprehensible insult to the nation's founders and a dishonor to those Americans who died fighting tyranny.

As expected, three Republicans voted against the amendment, and 14 Democrats voted for it.

Washington Sens. Patty Murray and Maria Cantwell, both Democrats, voted against the amendment. Cantwell said she understands the desire to protect the flag but added: "The strength of our nation lies in our ability to tolerate dissent even when we do not agree with what is being expressed."

The proposed amendment, sponsored by Sen. Orrin Hatch, R-Utah, reads: "The Congress shall have power to prohibit the physical desecration of the flag of the United States."

The vote marked the latest setback for congressional attempts to supersede Supreme Court decisions in 1989 and 1990 that narrowly ruled that burning and other desecrations of the flag are protected as free speech under the First Amendment.

The amendment's opponents agreed that flag burning is repugnant but argued that U.S. soldiers died to preserve freedoms that include controversial political statements.

Flag burning "is obscene, painful and unpatriotic," Sen. Daniel Inouye, D-Hawaii, who lost an arm fighting in World War II, said in a floor speech Tuesday. "But I believe Americans gave their lives in the many wars to make certain that all Americans have a right to express themselves, even those who harbor hateful thoughts."

Sen. Dianne Feinstein, D-Calif., who voted for the amendment, summarized proponents' views. The flag's special symbolic status, she said, makes its desecration different from holding a sign denouncing the president. Burning a U.S. flag in anger, she said, is "conduct, not speech" because the flag is "the symbol of our democracy, our shared values, our commitment to justice, our remembrance to those who have sacrificed to defend these principles."

Many saw political considerations behind the constitutional rhetoric. Republicans are eager to energize conservative voters this fall, and the flag initiative — even if doomed to fail — is seen as a surefire way to inspire them, especially a week before Independence Day.

The vote marked the closest advocates have come to banning flag desecration in many years of trying. In 2000, the Senate fell four votes short, and supporters had hoped the GOP's 55-45 majority would put them over the top this year. (The chamber has one independent.) The GOP-controlled House repeatedly has approved the amendment by hefty margins, and advocates say they could have obtained the needed ratification by three-fourths of the states if the Senate had followed suit.

The debate divided senators along unusual lines. Opposing the amendment was Mitch McConnell of Kentucky, the Senate's second-ranking GOP leader, and Robert Bennett of Utah, a quiet, mainstream Republican. The Democratic supporters included Minority Leader Harry Reid of Nevada and Sen. Evan Bayh of Indiana, a presidential hopeful.

Hatch disputed claims that the measure was politically motivated and an unwise use of the Senate's time in the face of war in Iraq, high gasoline prices and a growing federal deficit. "Fifty state legislatures have called on us to pass this amendment," Hatch told colleagues.

The Constitution was last amended — for the 27th time — in 1992, when the states belatedly ratified a 1789 bid by Congress to regulate lawmakers' pay increases.

Overturning a Texas law in 1989, the Supreme Court ruled 5-4 that burning a U.S. flag in protest is a form of political speech protected under the First Amendment. Congress later passed a federal anti-flag-desecration law, and the high court invalidated it on the same grounds.

Ever since, lawmakers have debated whether flag burning is an unsavory cost of political freedom or something more akin to intolerable hate speech or monument defacement. "All rights enshrined in the Constitution have certain limits," said Sen. Mel Martinez, R-Fla. "There is no such thing as unlimited rights."

But Russ Feingold, D-Wis., said Congress must "defend the right of all Americans to express their views about their government, however hateful or spiteful or disrespectful those views may be."

President Bush, who supports the amendment, called the failed vote unfortunate and commended Republicans and Democrats who voted to move the ratification process forward.

Material from The Associated Press is included in this report.