The Mississippi flag may be deeply offensive to black Americans, but displaying the Confederate battle emblem as part of the state's official banner is not a violation of their civil rights, the state told the U.S. Supreme Court on Wednesday.
In a legal brief to the High Court, the state argued the Mississippi flag, which features the Confederate emblem in its corner, does not violate equal protection laws or cause proven injury to minorities, noting that citizens encounter any number of symbols and displays on a daily basis.
The lawyers said if the lawsuit is upheld, it creates a slippery slope where anyone "could challenge any government action, display, monument, or speech he or she views as offensive or as unduly favorable to another, by simply alleging what cannot be disproved—namely, that he or she suffers denigration, stigma, or like form of discomfiture."
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The Supreme Court brief dates back to 2016 when Carlos Moore, an African American judge in Mississippi, sued to stop the state from flying the flag. Moore believes the flag represents state-sanctioned hate speech that violates the equal-protection rights of black citizens by endorsing a beacon for white supremacy.
"[The state] does not believe we are equal to the white citizens in Mississippi," Moore told Newsweek. "And I am no one’s second-class citizen... A message of white supremacy is completely inappropriate.”
Moore says he's received several death threats since filing the lawsuit, but in its brief Wednesday, Mississippi claimed that Moore is raising the standard "several notches for what constitutes an injury."
The state did acknowledge that Moore's personal and deep offense at the flag is "sincere," adding it did not doubt that others feel the same way, but said Moore has no case unless he can prove "discriminatory treatment" by the state.
Mississippi remains the last state in the U.S. to incorporate the Confederate emblem on its state flag.
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The Mississippi State flag sports the Confederate battle cross, sparking a legal battle in the U.S. Supreme Court.
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The legal battle over historical racism
Moore's case is based on the Constitution's 14th Amendment, which guarantees equal protection clause, with lawyer Michael Scott arguing that it should be considered like the Establishment Clause of the First Amendment — if the state cannot favor one religion, how could it favor one race?
The state countered that Scott cannot "pluck standards from the defining context of the Establishment Clause and transport them to a more pliable setting, free of that defining context."
In September, Mississippi won the first round, with District Judge Carlton Reeves dismissing Moore's lawsuit for failing to show "identifiable legal injury."
Carlton devoted about half of his legal decision to outlining the connection between slavery and the Confederate flag — but failed to see the case hinging on Equal Protection.
“Moore needs to identify that part of the Constitution which guarantees a legal right to be free from anxiety at state displays of historical racism,” Reeves wrote. “There is none.”
Moore appealed to the Supreme Court, which did not take the case but asked for both sides to submit arguments, a possible first step towards a full argument. Scott told Newsweek he will file a response to Mississippi's brief in "about 10 days."
'I realized ... it could inspire people to kill'
The Confederate battle flag — a relic of the movement that sought to maintain slavery — remains a powerful symbol in Mississippi. In 2001, 64 percent of residents voted to maintain the controversial flag.
But in 2015, white supremacist Dylann Roof murdered nine blacks in a Charleston church. Roof had posed with the Confederate symbol. In the ensuing controversy, South Carolina removed the full Confederate flag from its Capitol.
“(The flag) was more than an innocuous symbol," Moore told Newsweek. "It could inspire people to kill.”
But in Mississippi, the rebel flag lives on. After Charleston, some Magnolia State lawmakers tried to change the flag, but failed, with Republican Governor Phil Bryant emphasizing that state legislators should not "supersede the will of the people" in changing the flag.
In the 2016 legislative session, bills to change the flag did not get even get out of committee. Bryant took a moment out of Black History Month in February to announce that April would be declared Confederate Heritage Month in Mississippi.