Muriel Morisey (Temple University Beasley School of Law) has posted Flag Desecration, Religion and Patriotism (Rutgers Journal of Law and Religion, Vol. 9, 2007) on SSRN. Here is the abstract:
Although the United States flag has never been the target of widespread desecration, Congress has, on several occasions, been only a few votes short of sending a constitutional amendment to protect the flag to the states for ratification. The flag protection movement calls for abandoning of core free expression principles. This phenomenon is best understood by appreciating that the American flag is akin to a sacred religious icon, comparable to Christianity's crucifix, Judaism's Torah and the Koran of Islam. No court has designated patriotism as a religion, but in key respects it operates as a religion in American culture. Like traditional religions, patriotism inspires both noble deeds and appalling violence towards people who do not adhere to its commands. This effect is more acute in the age of terrorism. Amid noisy rhetorical claims and counterclaims, patriotism is conflated with support for the government's favored anti-terrorism policies. There are troubling legal and societal implications. Patriotism undergirds deeply flawed justifications for amending the Bill of Rights for the first time since its adoption in 1789. In the name of patriotism some instigate social opprobrium and intimidation. By mandating belief they offend First Amendment principles. In addition, forced patriotism, and in particular the flag protection movement, divides the nation into “us,” those who would criminalize flag desecration and “them,” those who would dishonor the flag.