Mississippi's Confederate Flag Could Head To The Supreme Court

by Seth Millstein
Chip Somodevilla/Getty Images News/Getty Images

A black Mississippi man is fighting a legal battle to have Confederate imagery removed from his state's flag, and wants the Supreme Court to hear his case. In papers filed Wednesday, attorneys for Carlos Moore appealed a lower court's ruling upholding the flag design, and argued that Mississippi's Confederate-themed flag violates Moore's constitutional right to equal protection.

Mississippi is the only state that still uses Confederate imagery in its flag, which it adopted in 1894. Moore, himself an attorney, initially sued Mississippi in 2016, arguing that the use of the Confederacy's flag in an official state symbol amounted to "state-sanctioned hate speech" against black Mississippians. However, Moore's lawsuit was thrown out by U.S. District judge Carlton Reeves, who ruled that Moore hadn't adequately demonstrated that he was injured by the state's flag. The Fifth Circuit Court of Appeals upheld that ruling.

But Reeves didn't actually address on the merits of Moore's case; rather, he ruled that Moore didn't have legal standing to bring the case to begin with. So, Moore is now requesting that the Supreme Court send the case back to Reeves and force the U.S. District Court to actually address Moore's legal claim: That it's unconstitutional for the Confederate flag to be incorporated into state-sponsored imagery.

"While acknowledging that the Establishment Clause prohibits a state from expressing the view that one religion is superior to, or preferred over, others, the court of appeals reached the remarkable and unwarranted conclusion that the Equal Protection Clause does not similarly prohibit a state from expressing the view that one race is superior to, or preferred over, another,” Moore's lawyers wrote in their appeal. They added that under the lower courts' rulings, "a city could adopt ‘White Supremacy Forever’ as its official motto; or a county could incorporate an image of white hooded figures and a noose hanging from a tree into its county seal; or a state could incorporate a Nazi swastika, as an endorsement of Aryan/white supremacy, in its state flag."

In 2001, Mississippi voters overwhelmingly approved a referendum to continue using the state's Confederate-themed flag. Defenders argue that the flag simply honors the history of the state, which seceded from the United States in 1861. Critics, however, argue that Mississippi's Confederate history is inextricably linked to slavery. In his ruling, Reeves noted that the state's official declaration of secession says that "[the state's] position is thoroughly identified with the institution of slavery — the greatest material interest of the world."

If the Supreme Court decides to hear Moore's appeal, it won't due so until October at the earliest.