Bill to Allow Ritual Flag Burning Catches Fire in the Legislature

VENTURA — A bill that would exempt the ritual torching of worn-out American flags from air-pollution laws is burning its way through the state Legislature at an unusually torrid pace.

The legislation is progressing in Sacramento less than a month after the Ventura County Air Pollution Control District aroused the ire of patriots by warning Ventura’s American Legion post that regulations prohibited its smoky ceremony.

The issue was ignited after a neighbor complained of noxious smoke from more than 100 flags burned June 18 in a barbecue pit outside the legion’s downtown Ventura headquarters.

The legionnaires, who say this is the proper way to retire a faded Old Glory, were inflamed by the warning, and Lt. Gov. Gray Davis, who is running for governor, caught wind of the controversy.

Air-pollution regulators quickly backed down, saying that a loophole in state law that exempts beach barbecues covers flag burning too.

But Davis, a fellow legionnaire, decided to champion the cause in Sacramento.

“The flag shouldn’t have to piggy back on an outdoor barbecue,” Davis said. He noted that the law protects people who burn the flag in protest as a form of free speech, but not those who do so out of reverence.

“The flag deserves its own exemption,” he said. “I want the American Legion to be able to continue with this time-honored tradition, and we believe we’ve drafted the bill to accomplish that purpose.”

A number of local lawmakers jumped at the chance to rally around the flag. The bill was introduced by Sen. Jack O’Connell (D-San Luis Obispo) with another lawmaker, and Assemblymen Brooks Firestone (R-Los Olivos) and Nao Takasugi (D-Oxnard) joined as co-authors.

The bill’s speedy track is prompted by the Sept. 12 end of the legislative session. Although the deadline for submitting new bills was Feb. 28, O’Connell worked around that restriction by gutting an unrelated bill on electrical restructuring in San Luis Obispo County and substituting new language to cover flag burning.

“The idea was to respond to a local concern, and this was the bill we had available,” said top O’Connell aide Gavin Payne. “The speed is of necessity because we only have that many days to get it done.”

Senate Bill 638 allows “the burning, in a respectful and dignified manner, of an unserviceable American flag that is no longer fit for display.”

But a Sacramento law professor said that, as written, the proposed exemption may run afoul of the Constitution, in a similar manner to a federal law that sought to outlaw flag burning in 1989, but was struck down by the U.S. Supreme Court.

“It’s saying there would be environmental penalties for people who burn the flag in a disrespectful manner and not in a respectful manner,” said Brian Landsberg, who teaches constitutional law at McGeorge School of Law. “It sounds like it’s not a practical issue. It sounds like it’s a symbolic issue. . . . I don’t know why burning [flags] inside with emission controls is any less respectful than outdoors on a barbecue grill.”