Chief Justice Rehnquist wrote in support of laws that ban flag-burning: “The flag is not simply another ‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas. Millions of millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical belief they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 states, which make criminal the public burning of the flag.”

One oddity, one glaring oversight. The oddity: Rehnquist did not describe America’s diversity in religion, only in “social, political, and philosophical belief.” How often do Americans divide over “philosophical beliefs”?

The glaring oversight: By Rehnquist’s own argument, it would seem that the Establishment clause would prohibit protection to the flag. How does a ban on flag-burning not amount to an establishment of a “mystical” flag-cult? I suspect that the question would not occur to Rehnquist, since patriotism doesn’t qualify as a religion - even if he cannot avoid religious language in describing it. Yet he seems to half-recognize that the US does in fact have an established religion, whose sacrament is the flag and whose creed is the Declaration of Independence.