The Supreme Court might soon consider the issue of Confederate symbols and how they relate to American public values. Carlos Moore, a citizen of Mississippi, has filed a lawsuit challenging the Mississippi state flag because it includes an image of the Confederate battle flag in the upper-left hand corner. Moore’s challenge was rejected by lower courts, primarily on procedural grounds, and he has asked the High Court to take up his case.
Moore, an African-American attorney, claims that the display of the Mississippi state flag at public buildings, in schools and in other prominent places around the state conveys a message of governmental endorsement of racial inequality, and that this endorsement is a violation of the U.S. Constitution’s Fourteenth Amendment, which prohibits any state from denying “to any person within its jurisdiction the equal protection of the laws.”
The use of the Confederate battle flag on the Mississippi state flag has been required by that state’s legislature since 1894, after the end of Reconstruction, and was reaffirmed by the voters in a statewide referendum in 2001. The 1894 flag statute followed the adoption of Mississippi’s post-Reconstruction constitution in 1890, which was intended to entrench white supremacy in the state through Jim Crow laws, poll taxes, school segregation and other measures designed to restrict African-Americans’ participation in, and ability to receive the benefits of, public life.
Several Southern states have removed the Confederate flag from their state capitols or capitol grounds in recent years. Jeb Bush removed the flag from Florida’s capitol in 2001, when he was governor of that state. Nikki Haley, former governor of South Carolina, ordered the Confederate flag taken off the capitol grounds following the 2015 murder of nine African-American worshippers at a Charleston church service by a white supremacist.
Former governor Robert Bentley of Alabama did the same, a significant move because the Confederate flag had been displayed at the Alabama capitol since George Wallace was inaugurated governor in 1963, while pledging to maintain “segregation now, segregation tomorrow, segregation forever.”
The Confederate flag as such does not fly over the Mississippi capitol, but the image of the battle flag occupies more than one-quarter of the space on the Mississippi state flag. Moore’s lawsuit claims, among other things, that, as an attorney, every time he enters a courtroom where the state flag is displayed he is reminded, through a message conveyed by the state itself, of Mississippi’s past practices of segregation and racial discrimination. Mississippi argues, in response, that all of those policies have since been repealed or overturned, either by the U.S. Constitution, by federal laws or court decisions, or by the state legislature.
Lower federal courts rejected Moore’s claims, largely on the procedural ground that as an individual citizen, he was not subject to a sufficiently strong “particularized injury” from the display of the flag that he had standing to bring a lawsuit against it. One of Moore’s arguments in the Supreme Court is that such a view of standing is overly narrow, and that other courts have allowed “symbolic speech” cases such as his to go forward, particularly when such cases are brought by targets of discriminatory government speech.
It is possible, although unlikely, that the Mississippi legislature will reconsider the design of its state flag in response to current controversies about Confederate statues and other monuments. It would be better if the legislature changed the flag itself rather than be ordered to do so by a federal court. But, failing that, Moore argues that the Supreme Court should take up his case and rule that Mississippi’s attempt to honor its Confederate history on its state flag cannot be reconciled with the Constitution’s requirement to extirpate racism from American public life.
Eric L. Davis is professor emeritus of political science at Middlebury College.