Honor by Statute - Sentiment Diluted Through The Illinois Flag Display Act

The Illinois Flag Display Act (5 ILCS 465/10) mandates "the Governor shall issue an official notice to fly the following flags at half-staff upon the death of a resident of this State killed (i) by hostile fire as a member of the United States armed forces, (ii) in the line of duty as a law enforcement officer, or (iii) in the line of duty as a firefighter: the United States national flag, the State flag of Illinois, and, in the case of the death of the member of the United States armed forces, [the appropriate flag of the branch of the United States armed forces or the Illinois National Guard]." 

 The Illinois State Capitol Building with flag flying at half-staff, May 1, 2013, pursuant to the death of  Kevin Sanders .  Kevin was a native of Plainfield, Illinois, but spent his recent years in Texas as a member of the  Bruceville-Eddy Volunteer Fire Department.   Kevin died in the  explosion  at the West Fertilizer Company in West, Texas, on April 17, 2013. 

The Illinois State Capitol Building with flag flying at half-staff, May 1, 2013, pursuant to the death of Kevin Sanders.  Kevin was a native of Plainfield, Illinois, but spent his recent years in Texas as a member of the Bruceville-Eddy Volunteer Fire Department.  Kevin died in the explosion at the West Fertilizer Company in West, Texas, on April 17, 2013. 

There are two reasons why I think this law does a disservice to Illinois' interests in honoring the fallen. 

First, it is unduly narrow in application and, therefore, exclusionary. For example, it only applies to military servicemen killed by hostile fire, meaning it would not apply to someone like Corporal Pat Tillman, who was killed in Afghanistan by friendly fire. Nor would it apply to Army Spc. Cory A. Hubbell, from Urbana, Illinois, who died of pneumonia in 2003 during his deployment in Operation Iraqi Freedom. The statute would not apply to an emergency medical technician or highway worker killed while working under contract for the state, despite both of those jobs carrying serious safety risks. While the Governor presumably has discretion to order the flags lowered at the death of any person, the statute is needlessly narrow in application. 

Second, and more fundamentally, the statute's mandatory nature removes all sentiment from the Governor's order to lower the flags to half-staff. It reminds me of when my mom would make me write a thank-you card to my aunt for sending me a birthday check. If my aunt knew I sent the card because an outside influence mandated that I do so, it would make my sentiment seem hollow. I think the Flag Display Act has the same effect.

To be sure, I've never lost a loved one in the line of duty. I would assume a mother, father, or widow would feel some warmth knowing that flags across the entire state are lowered in honor of their fallen loved one. But by mandating the lowering by operation of statute, the General Assembly has converted what has traditionally been a solemn symbol of respect, honor, and mourning into a routine ministerial function. Mandatory expressions of sentiment are no expressions of sentiment at all.

Other states, such as Virginia, South Carolina, New Jersey, Indiana, New Hampshire, Maryland, and Minnesotta have "shall order" laws, similar to the Illinois Flag Display Act, which mandate the Governor to order flags flown at half-staff upon the deaths of certain classes of people. Each of those laws vary as to the classes of people whose deaths mandate lowering.

I think Texas' statute is appropriate: "By order of the governor, the state flag shall be displayed at half-staff on a person's death as a mark of respect to the memory of that person." Tex. Gov't Code Ann. ยง 3100.065. This statute is not needlessly narrow in applicability, and it vests ultimate discretion in the Governor. I'm confident no member of the Illinois General Assembly would ever dare introduce a bill to outright repeal section 10 of the Flag Display Act, but an amendment aimed at broadening its applicability and giving the Governor discretion would be politically feasible, in my opinion at least.

A final observation is that this is one of those rare statutes that the Governor could completely refuse to obey and no person would have any standing to obtain an injunction ordering his compliance. No living person, not even a widow, would be able to prove a concrete injury traceable to the Governor's failure to order the flags lowered.

For your further edification, in the past year, by order of either the Governor or the President, or both, government-controlled flags in Illinois have flown at half-staff approximately 20% of the time:

2013

  • May 1, 7, 8, 9
  • April 1, 2, 3, 16, 17, 18, 19, 20, 29, 30
  • March 5, 6, 8, 9, 10, 15

2012

  • December 1, 4, 5, 6, 7, 14, 15, 16, 17, 18
  • November 19, 20, 21, 29, 30
  • October 1, 16
  • September 11, 29, 30
  • August 6, 7, 8, 9, 10, 31
  • July 20, 21, 22, 23, 24, 25, 26, 27, 28
  • June 8, 9, 10, 17, 18, 19, 23, 24, 25, 26
  • May 15, 27, 28, 29, 30