The issue of a constitutional amendment to prohibit desecration of the American flag is currently on political hold, but it remains potentially very much alive. We need, therefore, to continue to think about it, even to think about it in ways we might not have considered before. It would be useful in particular to recognize that the proposed amendment not only challenges our existing protections of public speech but also our prohibitions of an established religion. To see the conflict as a religious issue opens some perspectives that are buried in an exclusive focus on its threat to freedom of speech.
The First Amendment begins with the phrase, “Congress shall make no law respecting the establishment of religion. . . .” This is the first restriction on governmental powers in defense of the rights of the people. Freedom of religion, speech, assembly, and the press will follow it. Were the framers trying to tell us something with this order? I believe they were. The flag controversy can help us retrieve their wisdom and clarify what is at stake in this controversy.
The first meaning of this phrase was that no existing Christian church would be granted support and supremacy through governmental action. This prohibition was extended to the states through the power of the Fourteenth Amendment in 1940, leading to the plethora of religion-state litigation since then.
Its second meaning is that “religion” in any form shall not be so established by government. The Supreme Court has been very reluctant to define “religion” for purposes of adjudication. It has handled the problem on a case-by-case basis lest some general definition actually establish, almost by accident, some form of religion itself.
However, when we look at the cases the Court has handled under the “free exercise of religion” clause, we see a wide net indeed, ranging from any theistic movement to conscientiously held convictions, as with objection to war. The doctors of the law are reluctant to use conceptions of religion developed under the free exercise clause to approach problems of establishment. The flag issue, however, forces us to ask whether a statute or amendment concerning the “desecration” of the flag (and sacralizing it by implication) constitutes an establishment of religion.
What kind of religion does the flag represent? The idea that a national or “civil” religion, as Jean-Jacques Rousseau put it, exists in America has been around at least since Alexis de Tocqueville. In recent years Robert Bellah, Sidney Mead, and others have developed compelling analyses of it. Texts like the Constitution and Declaration of Independence, places such as Gettysburg, saints such as Lincoln and King, times such as the Fourth of July, and symbols like the flag constitute a kind of sacred realm knitting Americans together around common loyalties and perspectives.
The flag has come to be a kind of sacred symbol within this civil religion. There is little doubt of that. The question is whether we should now cross the line from this freely cultivated patriotic piety to the coercive domain of government. Should the state guarantee the flag's sacral standing by force? Should it establish this part of the civil religion, with its other components sure to follow behind? To follow out the logic of disestablishment is to answer in the negative.
This primary limit on state power stands at the heart of America's constitution—not the words on the old parchment, but the way we have come to constitute our public life in fact. This assumptive constitution holds that government shall derive its power and authority from “the people.” This does not mean first of all that a popular majority should rule the multitude in the manner of a collective tyrant. If so, we would have a flag amendment today. The point of the Bill of Rights is precisely not to unleash a feverish majority but to preserve the inviolability of that peculiar domain we call “the public.”
This means that the people's culture, opinion, and beliefs as well as the institutions that promote that complex public culture precede government. This underlying public culture must be free of governmental coercion. Its institutions shall be voluntary and governed by the minds and developed convictions of its citizens— both singly and in groups. This public culture is to shape the citizens who in turn shall shape government. Governments, in whose offices lie society's coercive powers, shall be controlled by the people rooted in their free public culture. Government shall serve the purposes derived from the arguments of that public and stand under its judgment.
The delicate point here is that government is to serve as an instrument for the majority's will with regard to the purposes set forth in the various constitutions of government, but the public realm itself must not be controlled by government or the will of the majority. Interpretations of the current controversy that only attend to free expression of individuals miss the wider truth that we must maintain the freedom of the public itself, and especially the powerful symbols and rituals undergirding it. Crucial to the freedom of this realm is the freedom of its symbols.
Underlying any vital public is a foundation of basic assumptions, beliefs, and established loyalties. A vital public rests on some kind of deep culture. Central to these cultural institutions are the religious bodies and their own rituals—that is, their symbolization and rehearsal of their ultimate loyalties. Religion, as many have observed, is the heart of any dynamic culture. From this deep culture arises the authority on which other institutions are based. This religious base serves to legitimate the society's structure of authority, but for that very reason must be removed from access to power and coercion.
Because of its long-range power, this religious culture undergirding the public realm must operate noncoercively. When cultural institutions seek to become coercive, they lose their capacity to transcend the interests of power. When governments seek to coerce culture, they swallow up the grounds for their own public legitimacy. Each distorts and corrupts the other, ending in their mutual degeneration. Our American Constitution rests on a delicate balance between these two dimensions of our life—between religion and government, between the public and the state, between authority and power.
The point is this: The critical symbols of our ultimate loyalties should always be free of governmental intervention and coercion. Government, whether or not it is the will of the majority, may not decide what is sacred and not sacred, what is orthodox and what is heretical. The basic beliefs of the people always must remain open to some Transcendence in terms of which governments themselves must be judged.
It is at this deep constitutional level that the proposal for a flag amendment strikes. It would lay the first brick in the establishment of a national religion. It is at this point that we must oppose it if we are to maintain the delicate balance of a free people, not to mention the profoundest insights of religions devoted to a transcendent God.
Even from a political standpoint, established religion corrupts the state, for it tends to absolutize the structures and policies of government. Under the cloak of the absolute—in this case, the Americanism symbolized by the flag—governments override all the other rights and liberties of the people, destroying the public realm itself.
From a religious standpoint, established religion corrupts religion, for it deprives it of its necessary openness to the Transcendent which stands beyond all partial powers. In this tradition, only God is sacred. God demands a free commitment and constrains us to separate our ultimate loyalties from our loyalties to the nation. It is this kind of cultural openness to the Transcendent that can finally rescue us from the delusion that we are the center and apex of the globe and of the universe.
Without this sense of transcendence, we cannot preserve a realm of public persuasion apart from government. These kinds of claims are central to most world religions and acutely so in the Jewish, Christian, and Muslim traditions, though they too have fallen prey to the temptation to confuse the purposes of a transcendent God with their own civil powers. From this perspective, a state-imposed sacral status is idolatry. Just as the First Amendment prohibits an established religion, so the First Commandment prohibits idolatry. The matter goes as deep as that.
Once we see the flag amendment as a kind of establishment, we see the enormous peril it poses not only for free citizens but for religious institutions as well. The imposition of flag ceremonies brought members of the Jehovah's Witnesses into court in the 1940s, ending with the Supreme Court's first ruling against this use of the flag. The Witnesses live with a positive command not to worship “graven images.” They had to actively withdraw from flag salutes. What will happen today if the government seeks to impose a religion of the flag on the religious associations rooted in this biblical tradition? Do President Bush and other supporters really want to lead us into this attack on our own religious traditions in addition to our constitutional ones?
This is the line of questioning that proceeds from seeing the flag issue as a problem of religious establishment. It needs to be on our public agenda as we deal with the outcry for an amendment that will recur in the wake of the Supreme Court's consistent reading of the First Amendment. How we cast the issue and how we respond to it will be decisive for the religious and civil future of the country.
William Johnson Everett teaches in the Candler School of Theology at Emory University.