Senators began debate on the amendment Monday afternoon and a vote is expected this week. The House of Representatives passed the amendment in July 2005 for the sixth consecutive time.
S.J. Res. 12 reads, "The Congress shall have power to prohibit the physical desecration of the flag of the United States." The amendment itself does not criminalize flag desecration but it does give Congress the authority to do so.
A constitutional amendment is needed in light of a 1989 Supreme Court ruling that overturned state laws against flag desecration. The Supreme Court ruled that flag burning, for example, is constitutionally protected free speech, and there are people across the political spectrum who support that free-speech argument.
Supporters of the flag protection amendment note that every state has passed resolutions urging Congress to pass the measure and send it back for ratification.
"Senate Joint Resolution 12 is a testament to what seven out of ten Americans believe -- that Old Glory deserves respect and protection," said Maj. Gen. Patrick Brady, U.S. Army (Ret.) and chairman of the board of the Citizens Flag Alliance.
"We commend the president for his staunch support of the American people to exercise their right to a redress of grievances through the amendment process," said Brady. "No other amendment has ever had such large support by the citizens of our nation. Our founding fathers would be proud to see the democratic process work exactly as it was designed to do."
Likewise, Thomas L. Bock, national commander of the American Legion, noted that poll after poll shows overwhelming support for a flag protection amendment.
"It's time now for senators, whether they personally support the measure or not, to vote 'Yes' on S.J.R. 12 and let 'We the People' decide," Brock said. "I urge all Americans to call their senators today and tell them to pass the flag amendment now."
A two-thirds majority of 67 votes is required for passage to send the amendment back to the states where it must be ratified by 38 of them to become the 28th Amendment.
The American Civil Liberties Union is among the groups that opposes a flag protection amendment. "This is an unnecessary answer to a non-existent problem, and it will violate every principle for which the flag flies," the ACLU says on its website.
Some conservatives agree with the ACLU in this case.
Sen. Mitch McConnell (R-Ky.) says he admires the patriotism of those who want to protect the flag -- "but altering our First Amendment, even for the worthy purpose of protecting the flag, is not a position I can support."
In a posting on his website, McConnell says he has no sympathy for people who desecrate the flag. "They deserve rebuke and condemnation-if not a punch in the nose," he said.
"I revere the American flag as a symbol of freedom," McConnell wrote. "But behind it is something larger-the Constitution. The First Amendment, which protects our freedom of speech, is the most precious part of the Bill of Rights. As disgusting as the ideas expressed by those who would burn the flag are, they remain protected by the First Amendment."
According to McConnell, "No act of speech is so obnoxious that it merits tampering with our First Amendment." Doing so, he added, would set a dangerous precedent for the rest of the Bill of Rights.
Both sides agree that two votes may be all that's needed to send the amendment to the states.
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