Flag Burning, Abortion, and Other Legal Acts

The most contentious issues facing America find their way to the Supreme Court. Here are five that still inspire debate despite being, at least for now, “settled law.”

The Roberts Court, November 30, 2018. Seated, from left to right: Justices Stephen G. Breyer and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Ruth Bader Ginsburg and Samuel A. Alito. Standing, from left to right: Justices Neil M. Gorsuch, Sonia Sotomayor, Elena Kagan, and Brett M. Kavanaugh. Photograph by Fred Schilling, Supreme Court Curator's Office.

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The news has been filled lately with stories about personal freedoms. States including Alabama, Missouri, and Ohio have attempted legislation to roll back abortion rights. Last Friday, Senators Steve Daines and Kevin Cramer introduced an amendment that would ban the burning of the American flag. Other recent bills are aimed at making standing for the Pledge of Allegiance or National Anthem mandatory. And yet, these and other issues are actually matters of law that have been settled by the Supreme Court. Here’s a look at a few things that your fellow citizens might find objectionable, but are perfectly legal according to current Supreme Court rulings.

1. You can sit for the Pledge of Allegiance

The Seal of the Supreme Court (supremecourt.gov).

The Supreme Court’s decision in 1943’s West Virginia State Board of Education v. Barnette guaranteed that students can’t be forced to stand for the Pledge of Allegiance or salute the American flag. The decision was based on the religious background of the Barnettes; as Jehovah’s Witnesses, their beliefs forbade them from saluting or pledging to other idols or symbols, including national or political ones, like the flag. The Court’s decision supported that belief, and in doing do, clarified that this right was the right of all Americans.

In recent years, mostly after the specter of 9/11 fell on the country, there have been a variety of news stories about children being punished for refusing to take part in the pledge. Despite certain states having law about pledge recitation, it’s still the law of the land that students cannot be compelled to do it. Similarly, this decision is seen as support for arguments against compelling students, or citizens in general, to stand for the National Anthem.

2. It’s not illegal to own (adult) pornography

Justice Thurgood Marshall wrote the majority opinion in Stanley v. Georgia. (Photo from LOC.gov)

Various obscenity laws have been in place since the founding of the country, with different states, or even cities, weighing in on what type of material might be legal or illegal to own. In 1969, Robert Eli Stanley came under scrutiny in Georgia related to illegal betting, but what the police found in his home after serving their warrant was “obscene materials,” which were three reels of pornographic films. Stanley was arrested and later convicted.

Stanley v. Georgia wound its way to the Supreme Court, which took it on in January, 1969. The court overturned the conviction and found in Stanley’s favor based primarily on the argument that the materials were privately held for private consumption. The Court also alluded to the First Amendment implications, noting that people have a freedom to take in the entertainment that they want, and that there was no “empirical evidence” that viewing obscene materials caused actual deviancy.

It should be clear that the ruling in no way cleared the path for legal ownership of child pornography. In fact, Osborne v. Ohio in 1990 gave the Supreme Court the opening to declare that the possession of, let alone creation of, child pornography is itself an illegal act.

3. Abortion is still legal

The Roe v. Wade decision made abortion legal in the United States. Turning on a key portion of the Due Process Clause in the 14th Amendment that guarantees a “right to privacy,” the decision gives women the right to have an abortion as supported by previous Supreme Court cases that weighed in on parental decision-making and reproductive rights (including Griswold v. Connecticut and Meyer v. Nebrasksa). There are restrictions baked into the decision that allow states to place prohibitions on third trimester abortions unless the mother’s health or life is at stake, but the procedure is, functionally, legal.

These new laws that significantly restrict abortion will likely act as a series of triggers that would set new cases in motion in a gambit to have the Roe v. Wade decision overturned. Until such time as an overturn happens (and that’s certainly not guaranteed), the 1973 decision stands.

4. You can burn the American flag

Thirty years ago this week, the Supreme Court delivered a decision in Texas v. Johnson that held that burning the American flag is protected as free speech under the First Amendment. Part of the decision supports the notion that “speech” is not merely considered to be words spoken aloud, but also actions, writings, or art intended to deliver a message. That assertion goes back to earlier cases, like Stromberg v. California, which involved flying a red flag as a form of dissent. The 1989 case was initiated in 1984 when Gregory Lee Johnson, who was protesting at the Republican National Convention in Dallas, set a flag on fire outside Dallas City Hall. Johnson was arrested and a convicted of “desecration of a venerated object.” His appeal drove the case all the way to the Supreme Court.

All but two states had flag-protection legislation vacated by the decision. Congress attempted an end-run around the ruling with the 1989 Flag Protection Act, but it was struck down by the 1990 United States v. Eichman case. A Flag Desecration Amendment continues to recur from time to time, but it was most recently defeated in the Senate in 2006.

5. Consenting adults behind closed doors aren’t breaking the law

Sodomy laws have existed for thousands of years, going back to the Assyrian Empire in 1075. Through the intervening centuries, such laws that included the prohibition of same-sex relations have fluctuated; for example, homosexuality was decriminalized in both the Ottoman Empire and in post-Revolution Russia (although Stalin banned it again when took over in the 1920s). Across U.S. history, sodomy laws existed during the Colonial period and carried over into the young country. A small measure of change began in 1962 when Illinois dropped penalties for consensual sex between adult men.

Over the next 40 years, 36 more states overturned or repealed their laws. The issue came to a head in 2003 when the Supreme Court took up Lawrence v. Texas. The case sprang from a complicated series of events when Robert Eubanks became angry over flirtations occurring between his former lover, John Geddes Lawrence, Jr., and Tyron Garner; after leaving the Lawrence’s home, Eubanks made a false report of a man with a gun. When the police arrived, they found Lawrence and Garner engaged in sexual activity, and arrested the men. Lambda Legal became involved on behalf of Lawrence and Garner, and helped escalate the case until it was heard by the Supreme Court.

The decision came down on June 26, 2003; much like Roe v. Wade, the finding invoked the 14th Amendment via the Due Process Clause. Justice Sandra Day O’Connor found that the Texas law also violated the Equal Protection Clause of the same amendment. As a result, laws that forbade sexual activity between consenting adults of the same gender were considered unconstitutional. The ruling was considered an important step on the road to Obergefell v. Hodges, which legalized gay marriage in the U.S. in 2015.

Whether any of these decisions will be changed over time remains to be seen. No matter of law is technically “settled,” since it may still be reviewed by the Supreme Court or acted upon by other legislative bodies. Whatever the case, it’s good to remember that as long as the Supreme Court says that something is the law of the land, that’s the legal truth.


Featured Image: The current Supreme Court of the United States. Seated, from left to right: Justices Stephen G. Breyer and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Ruth Bader Ginsburg and Samuel A. Alito. Standing, from left to right: Justices Neil M. Gorsuch, Sonia Sotomayor, Elena Kagan, and Brett M. Kavanaugh. (Photo by Fred Schilling; Supreme Court)

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