Professor: State Senate rule on Pledge of Allegiance might violate Constitution

DOVER — A rule in the state Senate requiring anyone in the chamber to stand for the Pledge of Allegiance may be unconstitutional, according to a law professor.

Included in the rules of the Senate, which are approved by members at the start of every two-years session, is a provision stating, “Any person on the chamber floor or in the balcony who is not a member of the Senate and who refuses to salute the American flag at the time such ceremony occurs shall leave the chamber floor or balcony.”

President Pro Tempore David McBride, D-Wilmington Manor, said the language was put in at his request, likely at some point in the 1980s.

“If you’re in the chamber, you have a responsibility … to salute the flag,” and anyone who wishes not to stand “should get out,” he said.

But that rule may violate the U.S. Constitution, according to Delaware Law School Dean Rod Smolla.

In the 1943 Supreme Court case West Virginia State Board of Education v. Barnette, justices ruled students cannot be compelled to say the Pledge of Allegiance and salute the American flag.

“The question would be whether there’s a difference between a school forcing a child to stand during the Pledge of Allegiance and a legislative body forcing a member of the public to stand,” Mr. Smolla said.

While not positive, he believes the Senate rule does clash with the right to free speech guaranteed by the First Amendment.

Sen. McBride, however, said he does not think the provision violates the Constitution. He does not plan to change the requirement.

Though most people in the Senate do stand for the Pledge of Allegiance, there are occasions where individuals do not. In those cases, the rule is not often enforced, but it was cited in June when a reporter was made to leave the chamber temporarily for not rising and saying the Pledge of Allegiance.

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