State senators voted Monday to make flag burning a crime — at least in certain circumstances — despite warnings from a staff attorney that the measure is likely unconstitutional.
Sen. Jack Harper, RSurprise, attached the provision to legislation that makes burning a cross a felony punishable by 18 months in prison. He said the flag deserves no less protection.
But Sen. Bill Brotherton, D-Phoenix, said the crossburning measure, which already has been approved by the House, passes legal muster because it does not interfere with pure First Amendment rights.
Instead, it only makes it illegal to burn a cross on the property of another, or in a public place "with the intent to intimidate any person or group.’’
Harper was undeterred.
"I believe the American flag deserves the same protection,’’ he said. So Harper put the same anti-intimidation language from the cross-burning provision into his amendment about flag burning.
Brotherton chided Harper for his comparison.
Brotherton said the Ku Klux Klan has a long history of burning crosses to intimidate blacks. But he said there are no instances where a flag has been burned to intimidate someone — at least not in this country.
He suggested Harper was confusing Baghdad, Iraq, with the Arizona mountain mining community of Bagdad.
Harper, again, was undeterred.
"Our soldiers, when their duties are done over in Iraq and Afghanistan will be coming home," he said. "We don’t need all those losers that travel the country protesting, never taking a shower, burning the flag to try and intimidate them."
Sen. Slade Mead, RAhwatukee Foothills, blasted Harper for not only bringing up the issue but forcing a recorded roll-call vote on his proposal. Mead said such tactics are designed to "intimidate" lawmakers into voting for a measure of doubtful constitutionality for fear of otherwise being painted as anti-American.
When Harper’s proposal came up for a simple nonrecorded tally, it went down on a vote of 9-15. Harper then demanded a recorded vote, with the proposal passing 14-8.
Harper would not let Mead’s criticism pass without comment.
"We know down here who is looking out for the country and who is looking out for himself," he said.
The now-amended measure needs a final recorded vote before going back to the House, which has not considered the flag-burning provision.