It was 1962 and I was sitting in my ninth-grade Westbury Junior High School music class. The teacher would start the class by having us sing the Star Spangled Banner. We would have to stand while singing. A young, courageous black woman, Diane, remained seated in the back row. Suddenly the teacher flew into a rage, going to the back of the room and excoriating the young woman. “How could she not stand out of respect for the country and those who gave their lives for the freedoms we enjoy?” Diane was exercising one of those freedoms. She politely explained that her religion as a Jehovah’s Witness prevented her from standing. The teacher was displeased with the exercise of the First Amendment, Freedom of Religion or what is also known as the “Free Exercise Clause.” I did not fully understand what was happening at the time because I was among those standing, but Diane was truly a mature and wise woman.
Last year I represented Danny Martins, an honor’s student at Hofstra University who decided to display a flag and an “Impeach Obama” sign on an L.I.E. overpass. I represented him after he was arrested. Justice Sharon Gianelli of Westbury was assigned the case. She is an African American, Democratic woman who followed the law. She relied on the First Amendment and the flag burning cases from the Supreme Court of the United States, Texas v. Johnson and United States v. Eichman (1989 and 1990); both upheld the right to burn the American flag as a form of protest protected under the First Amendment. We are now suing in federal court, both the state and county-based, upon the wrongful arrest, incarceration and denial of civil rights of Mr. Martin.
Now along comes Donald Trump who tells us that he wants Congress to pass a law that would override the decisions by the Supreme Court. What his extreme right Constitutional experts should have told him is that this has been tried before and you cannot do it. In 1968 President Nixon and his convicted Attorney General, John Mitchell, tried to override Miranda v. Arizona with the Omnibus Crime Control Act. It was so crazy that no president or court went near it until the rogue, Fourth Circuit Court of Appeals in Richmond, VA, a court that I often refer to as America’s Most Dangerous Place, got hold of it and tried to overturn Miranda by enforcing the Omnibus Crime Control Act. Neither the solicitor general nor the attorney general wanted any part of it. The case went to the Supreme Court of the United States and Chief Justice Rehnquist, an arch conservative in his own right, defended Miranda but more importantly, reiterated what most of us knew; that you cannot override a decision of the Supreme Court which has already ruled on the Constitutionality of an issue. Even the late Justice Scalia, as uncomfortable as he may have been in doing so, upheld the right to burn the flag as a form of free expression.
When the Nazis wanted to march in Skokie, IL, and the KKK wanted to march in lower Manhattan, the ACLU fought to uphold their rights to do so. At the time I resigned from the ACLU in protest. In retrospect I should not have. The First Amendment is too important a right to lose.