News-Info-Alerts

Re: Rebel Flag Case Hits Snag

To: ALL

From: Andi Wolos & Bob Necci

(POW-MIA InterNetwork)

Date: October 21, 2002

"Supreme Court passes up rebel flag case
By ANNE GEARAN
Associated Press


WASHINGTON - The Supreme Court refused Tuesday to settle a free-speech skirmish over the Confederate battle flag, which the federal government all but bans from national cemeteries out of worry that it is racially divisive.

The court had been asked if a descendant of a Confederate soldier may fly the flag daily at a Maryland Civil War cemetery. Justices refused without comment to consider the issue.

A federal judge had rejected the government's argument that the flag could provoke racial controversy or demands for counter-demonstrations, but two federal appeals courts backed the government policy.

The Veteran's Administration flies the American flag continuously at Point Lookout Confederate Cemetery, and allows frequent private displays of some other flags, including the familiar black and white "POW/MIA" flag.

The Confederate flag, however, may fly only two days a year.

Patrick J. Griffin, a former leader of the Sons of Confederate Veterans, went to court after cemetery administrators turned down his request to fly what he described as a historically accurate Confederate battle flag. The flag was intended to memorialize the fact that all of the approximately 3,300 soldiers buried at Point Lookout served the Confederate army, Griffin said.

The national cemetery, near the Chesapeake Bay in southern Maryland, holds remains of soldiers who died at one of the largest prison camps maintained by the North during the Civil War.

The Veteran's Administration allows the Confederate flag to fly at cemeteries containing Confederate dead on Memorial Day and on Confederate Memorial Day, which is recognized in some Southern states.

A cemetery employee flew the battle flag without permission at Point Lookout for about four years until it was removed in 1998. Griffin then unsuccessfully sought to set up his own flagpole, which would be privately funded and maintained.

Griffin claimed the flag policy violated the First Amendment right to free speech, and the case went to trial in 2000. A government lawyer was blunt in defending the cemetery policy.

"Many people perceive the Confederate battle flag as a symbol of racial discrimination," Justice Department attorney W. Scott Simpson said. "There can be no doubt that display of the Confederate battle flag would be perceived as the government's endorsement of that flag."

U.S. District Judge William M. Nickerson disagreed.

"The context of the display militates against any potential that a prohibited message of racial intolerance could be inferred," U.S. District Judge William M. Nickerson wrote. The judge approved Griffin's request to fly the battle flag, separate from the U.S. flag and on a shorter pole.

The Richmond-based 4th U.S. Circuit Court of Appeals and the Washington-based Court of Appeals for the Federal Circuit examined separate parts of Griffin's case, and both courts found that the government had sufficient reason to limit the flag display.

The government's own message that the Point Lookout dead were being honored "as Americans" might be confused by display of the Confederate flag, the 4th Circuit said. The Veteran's Administration was also justified in wanting to prevent counter-demonstrations and demands for other potentially controversial displays, that appeals court said.

Ruling on the broader question of whether the flag policy was unconstitutional for all the 119 national cemeteries, the Federal Circuit said the Veteran's Administration could decide for itself what displays are compatible with the solemn atmosphere of a national cemetery.

"It follows that the government must have greater discretion to decide what speech is permissible in national cemeteries than in those (locations) which serve no such patriotic purpose for the government," that court wrote.

The cases are Griffin v. Department of Veteran's Affairs, 01-1687 and Griffin v. Secretary of Veteran's Affairs, 01-1782."