A proposed constitutional amendment to ban burning of the American flag won the approval of the U.S. House of Representatives on Wednesday and was sent to the Senate where it may finally succeed after years of rejection.

“It’s going to be really close (in the Senate), within a one- or two-vote margin,” said Terri Schroeder of the American Civil Liberties Union, which has lobbied against the measure. It must also be ratified by the states to become law.

The increasingly conservative nature of the Republican-led, 100-member Senate along with a renewed sense of patriotism fanned by the Iraq war have made proponents optimistic.

Sen. Orrin Hatch, a Utah Republican and a chief backer of the measure, “is hopeful we have the votes,” said his spokesman Adam Elggren. “He’s pretty confident.”

Backers argue the legislation is needed to protect a symbol of American democracy; foes warn it would infringe on First Amendment guarantees of freedom of speech.

The House approved a ban by 286-130. It has voted repeatedly for such a measure since the U.S. Supreme Court ruled in 1989 that flag burning was protected free speech.

The Senate has rejected the proposed amendment in the past, most recently in 2000 by four votes. Republicans expanded their Senate majority in last year’s elections by four to 55.

To become law, a proposed constitutional amendment must be approved by two-thirds of the House and Senate, and then ratified by three-fourths, or 38, of the 50 states.

At the ACLU, Schroeder said she was pleased that House approval of the measure on Wednesday was by “the narrowest margin yet.” Two years ago, the House approved it, 300-125, she said.

“I’m feeling a little hopeful,” Schroeder said. But she noted 65 senators have voted for the measure before or have said they will support it this time.


Larry Sabato, a political scientist at the University of Virginia, predicted a close Senate vote, one that lawmakers who face tough reelections next year may think hard about.

“It’s tough to vote against because if you do it’s automatic you’ll face an attack ad in your next campaign,” Sabato said. “The First Amendment is not easy to defend.”

Rep. Jerrold Nadler, a New York Democrat, argued against the proposal, telling colleagues: “The flag is a symbol of our great nation and the fundamental freedoms that have made this nation great.”

“If the flag needs protection at all, it is from members of Congress who value the symbol more than the freedoms the flag represents,” Nadler said.

Rep. James Sensenbrenner, a Wisconsin Republican, spoke in favor of the measure, saying, “All 50 state legislatures have passed resolutions calling on Congress to pass a flag protection amendment, and polls demonstrate the overwhelming majority of Americans have consistently supported a flag protection amendment.”

“While our courts have authority to interpret the Constitution, under our system of government, the American people should and must have ultimate authority to amend it,” Sensenbrenner said.

The proposal was drafted in response to a 1989 Supreme Court decision that struck down a Texas law against flag desecration and a 1990 decision that ruled as unconstitutional a flag protection law passed by Congress.

The measure would specifically amend the Constitution to permit Congress to pass a law to protect the flag from desecration.