Mississippi state flag case rockets to the national stage

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Rogelio V. Solis, AP

Sons of Confederate Veterans and other groups parade on the grounds of the state Capitol, Tuesday, Jan. 19, 2016, in support of keeping the Confederate battle emblem on the state flag. 

Action this week at the U.S. Supreme Court makes clear that debate over the Mississippi state flag has reached national proportions never seen before.

After many years of debating the state flag in Mississippi, two national civil rights groups filed briefs in support of a lawsuit Grenada attorney Carlos Moore filed.

In addition, the nation’s highest court has requested more information from Gov. Phil Bryant, who is named as a plaintiff in the suit, which questions whether the state of Mississippi should fly its current flag – the last in the nation containing the Confederate battle emblem. A filing deadline of Sept. 28 was set by the court.

The request comes as the nationwide debate over Confederate symbols – including flags, building names and monuments – rages.

Tucker-Moore Law Group

Carlos Moore, a Grenada attorney and municipal judge pro tem in Clarksdale

Moore, whose case has been rejected by two lower courts, said through his attorney that this week’s Supreme Court request indicates the Mississippi flag case is at the very least on its radar.

“The Supreme Court, because it can only take a very small number of cases, has to figure out which cases are going to have impact on the country as a whole,” said Mike Scott, a Philadelphia, Pa.-based attorney representing Moore. “What’s been going on in Charlottesville and elsewhere shows that there’s a huge amount on angst and tension in the meaning of these images, what they were intended to do and what message was broadcast by them.”

The lawsuit, which cites the equal-protection clause of the 14th Amendment, argues that the state flag is “one of racial hostility” and “the state’s continued expression of its message of racial disparagement” labels African-Americans as second-class citizens.

Moore also believes his cause could be bolstered now that two prominent civil-rights organizations have weighed in by filing supporting briefs.

In addition to the Southern Poverty Law Center, the Congressional Black Caucus wrote an amicus brief signed by U.S. Rep. Bennie Thompson, from Mississippi, along with fellow Reps. John Lewis, Elijah Cummings, James Clyburn and Maxine Waters.

“Declaring the racial inferiority of a subjugated people, Mississippi and the other members of the Confederacy went to war in 1861, willing to tear apart the nation in order to preserve the institution of slavery and the economic benefits it afforded their free, white citizens,” the brief stated. “The Confederate battle emblem was the rallying symbol of those who would have destroyed the union rather than acknowledge the equality, and indeed the humanity, of black people. It is a vestige of America’s darkest hour.”

Attorneys representing Gov. Bryant have cited previous cases that dictate issues such as the state flag should be dealt with by the Legislature, not the federal courts.

U.S. District Judge Carlton Reeves agreed with that point when he dismissed the original filing as did the 5th U.S. Circuit Court of Appeals.

The chances of any case being heard by the U.S. Supreme Court are slim. Between 7,000 and 8,000 petitions are made to the Supreme Court each year, but just 80 to 100 are ultimately heard by the court.

In the Mississippi state flag case, Grenada attorney Carlos Moore, represented by Scott, filed the request of the Supreme Court after the Fifth Circuit upheld Reeves’ ruling.

Right away, the respondents – Gov. Bryant and his counsel – had the option to respond to the petition and chronicle their defense. Since the Supreme Court typically tosses most petitions, attorneys for the state of Mississippi, following common practice, did not initially file a response.

But this week, the Supreme Court asked the state to file the response, indicating some level of interest in the case by the high court.

To date, state attorneys have not defended the state flag directly. In solidarity with arguments made thus far, the state’s response to the Supreme Court petition will likely cite previous cases and argue the case has no standing, as they did when the case was in district court.

“The fact (the Supreme Court) did ask for a response means it’s possibly a good candidate for cert (a granted petition),” Scott said. “But before they do that, they want to see what the state has to say. It doesn’t mean cert’s going to be granted. It means the court has this case identified as one of a relatively small number that it wants more information on.”

Cliff Johnson, a professor at the University of Mississippi School of Law and director of the MacArthur Justice Center, said it’s difficult to read too far into the high court’s request.

“It is certainly possible it’s just a single justice or perhaps even a single justice’s law clerk who thinks it would be helpful,” he said.”It does mean that somebody has taken note of the absence of a response and feels that a response would be helpful in determining whether (a hearing) should be granted.”

Johnson adds, of the flag issue: “It’s not DOA, but it’s not up and running.”