Fortunately for third-string San Francisco 49ers quarterback, Colin Kaepernick, there is no law – federal, state, or local – that requires you to stand at attention when the national anthem is played at a public event. If there were such a law, it would surely be struck down by the courts, just as the law that required public school students to salute the American flag and recite the Pledge of Allegiance was struck down in that celebrated U.S. Supreme Court case, West Virginia v. Barnette (1943). As Justice Robert Jackson noted in his majority opinion, the law compelled the student to sport a “‘stiff-arm’ salute . . . keep the right hand raised with palm turned up while the following is repeated: ‘I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all.’”
Justice Jackson argued that, short of trying to avoid a clear and present danger, this sort of coerced “involuntary affirmation” is contrary to the principles of the Constitution, even if its advocates claim that its purpose serves some public good, e.g., national unity, patriotism, etc. As he notes: “Hence validity of the asserted power to force an American citizen publicly to profess any statement of belief or to engage in any ceremony of assent to one presents questions of power that must be considered independently of any idea we may have as to the utility of the ceremony in question.”
The spirit of Justice Jackson’s opinion is captured in these memorable words, which I never tire of quoting: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”
I suspect that the commissioner of the National Football League (NFL), Roger Goodell, was inspired by the principles that gave rise to those profound sentiments when he recently chose not to use the power of his office to fine Mr. Kaepernick or to force him to stand during the national anthem: “Players have a platform, and it’s his right to do that. We encourage them to be respectful and it’s important for them to do that.”
Because the NFL is a private organization and not the government, Commissioner Goodell was under no legal obligation to permit Mr. Kaepernick to continue his protest. Thus, what the commissioner showed was remarkable restraint, no doubt recognizing of his own power what Justice Jackson understood of the state’s power, “As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be.”
And yet, it was only six months ago when the NFL implicitly threatened to not consider the city of Atlanta’s Super Bowl bid because the state of Georgia’s legislature had sought to offer in law to clergy and faith-based organizations the same rights of expression and participation in certain events and ceremonies conducted at private venues that Commissioner Goodell is now providing by discretion to Mr. Kaepernick for certain private pre-game events and ceremonies conducted at NFL venues.
The cases are oddly similar. Those supporting the Georgia legislation were accused of being against “inclusiveness and diversity,” even though the law was crafted precisely for that end. By allowing for clergy and faith-based organizations to live consistently with their beliefs in the public square without fear of government reprisals and financial penalties, the law implicitly acknowledged that “involuntary affirmation” of one side on contested matters that deeply divide us betrays the principles of inclusiveness and diversity.
Critics of Mr. Kaepernick have accused him of being not only unpatriotic but disrespectful of those in the military who have given their lives to protect the nation of which Old Glory is its primary symbol. But the biracial multi-millionaire third-string NFL quarterback doesn’t see it that way: “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color.”
I think he’s wrong, since honoring the flag is like honoring your family and your heritage. You are not honoring everything done by everyone in your lineage. What you are doing is recognizing your own smallness and dependency, that you were born into a setting you did not choose that has given you – without any merit on your part – place, life, friendship, and civilization, with all the foibles and flaws that go along with anything human. Nevertheless, I still think that Commissioner Goodell made the right decision in not pressuring Mr. Kaepernick to violate his conscience.
One can only hope that the commissioner will someday summon the imagination to see that non-multimillionaire citizens, who do not have Mr. Kaepernick’s public platform or even a fraction of his personal resources, have consciences as well.
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