Recently, it seems our country is distracted from more important issues (like impending nuclear war) by the recent collision of the first amendment’s guarantee of free speech and elements of the Flag Code regarding the National Anthem. This dialogue began when pro-quarterback Colin Kaepernick began kneeling for the Anthem during the 2016 season, and has been picking up steam ever since, helped greatly by Trump’s recent attack on the QB and those who have chosen to follow his lead.
Regardless of how anyone feels about Kaepernick’s stated reasons for kneeling, it would appear that a large section of this country’s population seems to believe that saluting the Anthem or reciting the Pledge at every public opportunity is the formal duty of every American citizen. Some on the web have gone as far as to suggest that kneeling (for the Anthem) instead of standing is a criminal act. But the Flag Code is not law. To suggest anything criminal is not a fair reading of the code with regard to the Anthem or the Pledge, nor is it a fair reading the QB’s actions.
It is important to note that while the US Code says all persons must stand and salute the flag (or a band when no flag is present) when the Anthem is played, the National Anthem Code and Pledge of Allegiance Code are formal government etiquette statutes. While technically a "law" passed by legislation and signed by a president, these parts of the US Code lack the necessary elements to be enforceable in a criminal context. This would suggest that the assertion of criminality in this regard was never the legislative intent. Many on the web also seem to be confusing the Anthem portions of the legislation with the with the 1954 amendments regarding The Pledge of the Allegiance. These misrepresentations are used to equate disrespecting the country to disrespecting God. Making that comparison is a hard thing to do, but these days many Americans aren't much on facts or history.
Lest we fall into an argument of unfounded ideologies and nationalist mythologies, it is important to point out a few facts. The National Anthem is "The Star Spangled Banner." It was written in response to a scene in the War of 1812, and was not a direct result of the Revolutionary War. It is not a product of our original government and was not made the official anthem until the 1930’s when a group of vets collected over five million signatures to make it the Nation's first National Anthem. Most football games only use the first stanza of the song which ends with a question, not a statement:
O say does that star-spangled banner yet wave
O'er the land of the free and the home of the brave?
The Pledge of Allegiance was not written by any of our founding fathers. In fact, almost a hundred years after the Bill of Rights was penned, a Christian Socialist minister named Francis Bellamy wrote the bones of what would be adapted to be the current official pledge of the US. That’s right, a socialist that linked the teaching of Jesus Christ to those of Karl Marx initially penned the American Pledge. Bellamy’s intent for the original pledge was that it might be used by any citizen in any country. It was originally published in October 1892 and read:
"I pledge allegiance to my Flag and the Republic for which it stands, one nation, indivisible, with liberty and justice for all."
It was revised in 1923 to make the pledge specific to the United States, and the words “under God” were not added until 1954. The rhetoric that passed this bill suggested that it was an anti-communist act. It was a response to the perception that communism stripped people of the right to religion, another impact of the McCarthy era. This move had also been empowered by a three-year grassroots campaign by the Knights Of Columbus, a Catholic organization. Additionally, another movement that linked the words “under God” to their use in Lincoln’s Gettysburg address had helped push forward the call for legislation. But much of the legislative floor debate focused on it as an anti-communist measure. The entirety of the 1954 legislative code revision reads:
The Pledge of Allegiance to the Flag: “I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.”, should be rendered by standing at attention facing the flag with the right hand over the heart. When not in uniform men should remove any non-religious headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Persons in uniform should remain silent, face the flag, and render the military salute. Members of the Armed Forces not in uniform and veterans may render the military salute in the manner provided for persons in uniform.
While the Flag Code does state that all should stand for the Anthem, "stand" is not legally defined and could be interpreted and "not sitting." The staement is also not legally enforceable and therefore not binding to any individual. In reality, according to generations of legal minds, ignoring this code is an affront equivalent to using the wrong salad fork at formal dinner. In the 1954 legislation there is also no mention of citizens being required to recite the Pledge, or the protocol for how to behave when choosing not to do so. Further, despite popular rhetoric, it is hard find any official foundational support that the the law meant to uphold a Christian God overseeing the country, but rather, the lack of this specific language it would seem the intent was to uphold the concept of freedom of religion promised to all citizens by the constitution. In fact, the law seems drafted to be in accordance with the 1948 Supreme Court ruling (6-3) that stated requirements to take the pledge were in violation of the Bill of Rights. This case found it unlawful to require Jehovah’s Witnesses to speak the Pledge when in school. The decision reads:
Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which says: 'Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them.' They consider that the flag is an 'image' within this command. For this reason they refuse to salute it...
It goes on to say:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
And finally, even though this next phrase has become the butt of every joke about every bad wedding and graduation speech ever made, I can’t help but feel that it needs to be said:
According to Mirriam-Webster, “Allegiance” is defined as:
“The fidelity owed by a subject or citizen to a sovereign or government.”
So in all of this, one is forced to ask, what does proper etiquette mean when the government of the country you call home is espousing hateful rhetoric directed at you? What do you do when you have every right to oppose the language, but are expected to blindly follow a protocol to honor your country, as if it were not attacking you in this moment? Is following such a protocol, in fact, a statement of support for the nation’s current values? Does the expectation that one should put aside their belief for etiquette not border of Facisim? Given all this, what do you do when this support for country is expected regardless of its leadership’s values or ideologies? Would saluting an anthem or taking a pledge not simply be dishonest?
In dealing with this dilemma, Kaepernick chose to kneel, a form of etiquette that has traditionally been used by dignitaries to foreign nations to show respect for another government’s Sovereignty. In this case, Kaepernick kneeling was a sign of respect that fell short of honoring a government that does not truly serve the interests of all its people. He chose not to honor a government which gives preferential treatment to certain groups, while excluding his own. It is an act that follows the traditions of Martin Luther King and many others. It was an act of honesty. It was an act of “standing up” for and honest look at another value of our country, “ justice for all.” How can anyone say these words when they are known to be untrue? Because, to salute the Anthem (or to to recite the pledge), to represent yourself in support of a government that would rather let you die than clean the dark underbelly of racial and classist tensions within it, would be a lie.
This is what strikes me as the most incredible part of the controversy. I am shocked at the number of people who would rather Kaepernick (and those that have joined him) be a liar than be true to his own beliefs. Kneeling does not make him a criminal, or for that matter, even disrespectful. It makes him a man, in a hard moral position, trying his best to be both respectful and honest. It is the kind of brave our National Anthem wants us to aspire too. It is additionally ironic that the religious act of kneeling would be labeled as an affront to God.
By being honest in this act, Kaepernick is not disrespectful or unpatriotic. This act makes him a patriot the likes of which have brought our country forward at every critical juncture. He joins Rosa Parks, Susan B Anthony, Fredrick Douglas, the perpetrators of the Boston Tea Party, and countless others. As Kaepernick quickly becomes the next major part of a legacy, one filled with those who have insisted that this country’s foundation is first and foremost that everyone is allowed the pursuit of life, liberty and justice. He joins those patriots who throughout history have refused to salute that which he finds unjust. To stand against him is to stand against them.
And if you can accept his acts for no other reason, Colin Kaepernick’s need to be honest in his choices, his promises, and his need to ensure that his actions reflect his actual values, deserves your respect.