Senate Passes Bill Banning Flag Burning : GOP Change Makes It Vulnerable in Court, Democrats Say

WASHINGTON — The Senate today approved a ban on burning or otherwise defacing the American flag but added a Republican-sponsored change that Democrats said could make the bill vulnerable in any future court challenge.

The ban, previously approved by the House, cleared the Senate 91 to 9. It was returned to the House for consideration of changes made by the Senate.

Key votes came on two GOP-sponsored changes in wording that Democrats said would skew careful phrasing that was designed to beat back expected court challenges to the bill’s constitutionality.

Amendment Preferred

Republican critics say the bill already is likely to fail such a court test. They prefer a constitutional amendment as urged by President Bush after the Supreme Court in June overturned the criminal conviction on Texas flag-burner Gregory Lee Johnson on the ground that his freedom of speech had been violated.

The ruling resulted in a public reaction that fueled congressional action.

The skirmishing on the Senate floor, however, was between Democrats seeking to push their bill through and Republicans hoping to replace it with the proposed amendment. That measure comes up later this month.

In rapid succession, the Senate first refused, 69 to 31, to kill an amendment offered by Sen. Pete Wilson (R-Calif.) that would make it a crime to “physically defile” the flag. It then adopted by a wide margin Wilson’s measure, which Democratic sponsors said would nudge the bill toward constitutional problems on free-speech grounds.

The Senate then voted 53 to 47 to kill a proposal by Minority Leader Bob Dole (R-Kan.) to exempt flag defacement that took place in private. Sponsors said that also could make the measure vulnerable.

Voting Against Bill

Those voting against the final bill were Dole and Sens. John H. Chaffee (R-R.I.), Charles E. Grassley (R-Iowa), Orrin G. Hatch (R-Utah), Gordon J. Humphrey (R-N.H.), Edward M. Kennedy (D-Mass.), Bob Kerrey (D-Neb.), Howard M. Metzenbaum (D-Ohio) and Daniel P. Moynihan (D-N.Y.).

The bill calls for up to a $1,000 fine and year in jail for anyone who burns an American flag or defaces it in any one of several other ways.

Federal law already bans flag burning, but senators say the law contains constitutional pitfalls similar to the ones in the Texas statute.

Conservative Republicans urge the amendment on the ground that it would settle the issue once and for all. It could not be challenged in court.

Some senators said they detected a distinct cooling of emotions on the issue in the months since the Supreme Court ruling.

“There’s no grass-roots firestorm for jailing flag burners nor for amending the Constitution,” Metzenbaum said.

But Metzenbaum said enough passion remains that lawmakers are wary of opposing a ban.