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Flag Day: History, Design and Legal Challenges

The American flag has become an iconic symbol in our nation. It is flown over every important government building. It is on prominent display at sporting events. Soldiers and sailors have followed the flag into combat for more than two centuries. Most of us more or less believe that Betsy Ross made the first flag at the request of General George Washington. Interestingly, that legend did not surface until the 1870s when Betsy Ross’ grandson claimed it was part of family history that his grandmother made the first flag for George Washington. But whether the story about Betsy Ross is true or not, it has no bearing on the love affair Americans have had with our flag throughout our nation’s history.

Flag Day and Flag Code

At the first National Flag Conference in 1923, which was attended by representatives of the military and other patriotic groups, it was decided that June 14 would become Flag Day in the United States. At the same conference, the delegates adopted uniform procedures for honoring and displaying the flag. These procedures became law in 1942 and are called the Flag Code (36 U.S.C 173-178). Some of these laws include:

  • The flag should be displayed from sunrise to sunset unless it is well lit in darkness.
  • On a stage, the flag should always be placed behind the speaker and to his/her right.
  • The U.S. flag should always fly above other flags when there is more than one flag on display.
  • The flag should not be allowed to touch the ground.
  • When a flag is worn out, it must be destroyed, preferably by burning. Many American Legion posts perform this service in their communities.
  • The flag should not be used as wearing apparel or for advertising purposes.

Flag Design

Some attribute the choice of the flag’s colors to Charles Thomson, the secretary of the Continental Congress, who designed the Great Seal of the United States. When he presented the new seal for the new nation to Congress, he said this about the colors:

“White signifies purity and innocence. Red hardiness and valour and Blue . . . signifies vigilance, perseverance and justice.”

The Flag Code does specify the colors that must be used in the flag:

“There must be thirteen horizontal stripes, alternating red and white.  There will be a blue field containing white stars for the fifty states.”

Legal Challenges

In 1989, the Supreme Court of the United States held that burning a flag in protest was protected speech under the First Amendment (Texas v. Johnson). Immediately following that decision, various groups talked about proposing a constitutional amendment that would ban flag burning. However, no such amendment has been formally proposed to date.

Pledge of Allegiance to the Flag

The Pledge of Allegiance to the flag did not become part of the American landscape until the late 19th century. In 1892, Francis Bellamy, the circulation manager for a children’s magazine called The Youth’s Companion, wrote the pledge to honor the 400th anniversary of Columbus discovering America. The pledge was distributed through the country so that on October 12, 1892, children throughout the nation could recite the pledge. Thus began the tradition of reciting the pledge at the beginning of every school day.

Legal Challenges to the Pledge

The practice was challenged in the early 1940s by the parents of Lillian and William Gobitis who were expelled from the public schools of Minersville, Pennsylvania, for refusing to salute the flag as part of a daily school exercise. The Gobitis children were Jehovah’s Witnesses and believed the practice to be in violation of their religious beliefs. Although the Gobitis family initially lost their case in 1940 (Minersville School District v. Gobitis, the Supreme Court of the United States reversed itself in 1943 (West Virginia v. Barnette) and found in favor of the parents and the First Amendment.

In 1954, the words “under God” were added to the pledge. There have been some court cases alleging that the words “under God” violate the Establishment Clause of the U.S. Constitution’s First Amendment. The first case that made it to the Supreme Court in 2004 (Elk Grove Unified School District v. Newdow), was decided on a procedural matter and the legal issue was not addressed.

Millie Aulbur is The Missouri Bar Director of Citizenship Education. Her primary work is developing materials and programs to assist and enhance the work of Missouri’s civics and government teachers.

This blog post was updated on July 1, 2015. An earlier version mistakenly stated “stripes” rather than “stars” in a sentence describing the colors used in the flag.

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