Judge jabs Confederate emblem as he dismisses flag lawsuit

ByEmily Wagster Pettus & Chevel Johnson AP logo
Friday, September 9, 2016
The Mississippi state flag is displayed with the banners of other American states, territories and commonwealths in Washington, D.C.
AP Photo/J. Scott Applewhite-AP

JACKSON, MS -- A federal judge Thursday dismissed a lawsuit that sought to have the Confederate battle emblem on the Mississippi flag declared an unconstitutional relic of slavery.

U.S. District Judge Carlton Reeves ruled that the attorney who filed the suit, Carlos Moore, failed to show the emblem caused a "cognizable legal injury." However, in dismissing the suit, Reeves also picked apart arguments made outside the courtroom by many flag supporters who say that Mississippi's secession from the union before the Civil War had nothing to do with slavery.

Reeves quoted the state's 1861 secession declaration, which said: "'Our position is thoroughly identified with the institution of slavery - the greatest material interest of the world.'"

Then, the judge continued in his own words: "To put it plainly, Mississippi was so devoted to the subjugation of African-Americans that it sought to form a new nation predicated upon white supremacy."

Mississippi has used the same flag since 1894. Its upper left corner has the Confederate battle emblem - a red field topped by a blue X dotted with 13 white stars. Voters chose to keep the banner in a 2001 referendum. It's the last state flag in the nation to prominently feature the emblem.

Like other Confederate symbols, the Mississippi flag has come under increased scrutiny since the June 2015 killings of black worshippers in South Carolina. The white man charged in that case had posed with the Confederate battle flag in photos published online. Several cities and counties and seven of Mississippi's eight public universities have stopped flying the state flag.

"Moore's arguments are phrased as constitutional claims, yet his allegations of physical injuries suggest that he is making an emotional distress tort claim," Reeves wrote. "To succeed in constitutional litigation, however, 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. There is none."

Moore, a 39-year-old African-American from Grenada, Mississippi, filed the suit in February, asking Reeves to declare the flag an unconstitutional relic of slavery.

In his ruling, Reeves, who is black, wrote: "The emblem offends more than just African-Americans. Mississippians of all creeds and colors regard it as 'one of the most repulsive symbols of the past.' It is difficult to imagine how a symbol borne of the South's intention to maintain slavery can unite Mississippians in the 21st century."

Moore said Thursday has not decided whether to appeal the ruling to the 5th U.S. Circuit Court of Appeal in New Orleans.

He said he has mixed emotions about the lawsuit being dismissed even after receiving three death threats because he filed the case.

"I'm relieved that the death threats to me and my family should subside," Moore told The Associated Press. "I'm disappointed that my daughter, for the foreseeable future, still has to live under a regime with an offensive Confederate emblem on the Mississippi flag."

Moore had argued in the lawsuit that his daughter, who started kindergarten this year, should not have to attend a public school with a state flag featuring the Confederate battle emblem.

"It's not just my daughter," Moore said Thursday. "It's countless other African-Americans and other lovers of justice and equality."

Flag supporters and opponents are circulating petitions seeking another statewide vote on the symbol.

"The Confederate battle emblem has no place in shaping a New Mississippi, and is better left retired to history," Reeves wrote. "For that change to happen through the judiciary, however, the Confederate battle emblem must have caused a cognizable legal injury. In this case no such injury has been articulated. Whether that could be shown in a future case, or whether 'the people themselves' will act to change the state flag, remains to be seen."