Music, Religion, Supreme Court

The Docket's Red Glare: Francis Scott Key And The Star-Spangled Banner

Key’s power of persuasion didn’t lead to victory at the Supreme Court and today that man, Francis Scott Key, is better known as a lyricist than a lawyer.

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Two hundred years ago yesterday, on September 14, 1814, a Washington, D.C. lawyer penned the words to what would become the United States’ national anthem. Today that man, Francis Scott Key, is better known as a lyricist than a lawyer. But at the time, the judge’s son, born to a wealthy slave-owning family in Maryland, was well respected in Washington’s legal and political circles. This week, On Remand looks back at Francis Scott Key’s legal career and some laws and lawsuits featuring Key’s composition, The Star-Spangled Banner.

By 1814, the thirty-five-year-old Key had already argued several cases in front of the Supreme Court. The most famous case, Mills v. Duryee, was the first time the Supreme Court construed the Constitution’s Full Faith and Credit Clause. Key argued that a judgment from one state, when presented in another state, was merely one piece of evidence to be weighed with all other evidence. Justice Story, delivering the majority opinion, thought little of Key’s argument, writing that it would render the Full Faith and Credit Clause “utterly unimportant and illusory.”

Key’s power of persuasion didn’t lead to victory at the Supreme Court. But, a year later, Key’s advocacy for a prisoner of war brought him near the frontline of the War of 1812. What he watched “o’er the ramparts,” then observed afterwards at “dawn’s early light” from a ship in Baltimore Harbor, became the inspiration for our national anthem….

On September 7, 1814, Key and two other Americans boarded the British ship Tonnant to negotiate the release of an American doctor who had been arrested by British soldiers. In just a few hours, Key won the doctor’s freedom, but jeopardized his own.  The British, planning to attack Baltimore imminently, held Key and the other Americans captive so they could not reveal the plans.

A week later, the British finally attacked.  From a truce ship eight miles upriver, Key watched nearly fifteen hundred shells falling on Fort McHenry. Key described the attack “as though mother earth had opened and was vomiting shot and shell in a sheet of fire and brimstone.” After the “twilight’s last gleaming,” all Key could see as night fell was the “rocket’s red glare” — the glow of Britain’s new Congreve rockets.

Key woke on September 14th not knowing the battle’s outcome.  As the dawn mist evaporated, Key saw not the Union Jack, but “broad stripes and bright stars” flying from Fort McHenry. The fort had not fallen. Key captured his joy and relief by scribbling out a few song lines on the back of a letter he happened to be carrying. The next day, he completed four verses at a Baltimore inn. Key intended the verses to be sung to the tune of  “To Anacreon in Heaven” — a popular British song that had already been widely used for political purposes in America, including as campaign songs for John Adams and Thomas Jefferson.

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It may all have ended there, but Key’s brother-in-law, a commander at Fort McHenry, published the lyrics under the title “Defence of Fort McHenry.” Soon, the lyrics appeared in the Baltimore Patriot and other newspapers. Renamed “The Star-Spangled Banner,” the song became familiar in political campaigns, Independence Day celebrations, and sporting events. In 1931, by presidential proclamation and congressional resolution, it became our national anthem. Today, however, we sing only the first of Key’s four stanzas.

After writing The Star-Spangled Banner, Key continued working as a lawyer in Washington. In 1832, when former Tennessee Governor (and future President of Texas) Sam Houston whacked Congressman William Stanbery with a hickory cane, Key defended him at trial. (Key lost the case, and Houston left Washington, refusing to pay the $500 fine.) The following year, Key began work as the District Attorney for the City of Washington, a position he held for eight years.

It is fitting that our national anthem, authored by a lawyer, is also the subject of various laws. In 1916 — fifteen years before it officially became the national anthem — the City of Baltimore passed an ordinance regulating renditions of The Star-Spangled Banner. To protect the flag from “musical desecration,” the ordinance required The Star-Spangled Banner to be performed in its entirety and not for dancing or as an exit march. The penalty for getting jiggy with it? A maximum fine of $100. The ordinance was immediately criticized, leading one city official in 1916 to declare it a dead letter. Yet, the ordinance and its $100 fine remain on the books today, largely unchanged since their introduction nearly one hundred years ago. It is unclear, however, whether anyone has been prosecuted under the ordinance.

Of course, Baltimore’s ordinance cannot punish musical desecration of the flag outside the city’s limits. Because The Star-Spangled Banner is performed before most professional sporting events in the country, opportunities for musical desecration abound. In 1990, Roseanne Barr was widely criticized for gallantly screaming the anthem at a San Diego Padres game, then grabbing her crotch and spitting as the grand finale. And Michael Bolton? Apparently he has no talent for remembering the words to The Star-Spangled Banner. Bolton’s 2003 rendition, which included an awkward pause as he checked the lyrics on a palmed crib sheet, ranks third on Billboard’s list of the all-time worst anthem performances.

No federal laws prohibit irreverent behavior by the performer, but one federal law encourages propriety from spectators. Although there is no penalty for non-compliance, under Section 301(b) of Title 36, spectators should remove headdresses, and stand at attention facing the flag, with their right hand over their heart. Military personnel in uniform should salute from the first note to the last.

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Those who fail to rise for the national anthem, however, sometimes do meet with their community’s censure. In 1961, an Arizona school expelled three children for refusing to stand during the national anthem. Suing under the Civil Rights Act on behalf of their children, the parents alleged that standing for the anthem was worship of a graven image, prohibited by their religious beliefs as Jehovah’s Witnesses.

While not entirely sympathetic to the plaintiffs (the opinion noted no Constitutional requirement that beliefs be “reasonable, or wise, or even sensible”), the Arizona district court, following Supreme Court precedent, ordered the school district to readmit the students and permit them to sit during the national anthem. The court also rejected the state’s sole justification for expulsion — that the children’s refusal to stand was a “disciplinary problem”:

[T]here is much to be said for the view that, rather than creating a disciplinary problem, acceptance of the refusal of a few pupils to stand while the remainder stand and sing of their devotion to flag and country might well be turned into a fine lesson in American Government for the entire class.

Jehovah’s Witnesses aren’t the only ones to refuse to stand during The Star-Spangled Banner. In the midst of the 1995-96 NBA season, Denver Nuggets star point guard Mahmoud Abdul-Rauf stopped standing for the national anthem, claiming it conflicted with his Muslim beliefs. At first, Abdul-Rauf suffered only media scrutiny and the boos and jeers of fans. Then the NBA suspended him. The suspension lasted only one game, as Abdul-Rauf reached a compromise with the NBA that allowed him to close his eyes and pray (while standing) during the national anthem. Nevertheless, Abdul-Rauf subsequently found it “close to impossible to play in the U.S.” The Nuggets traded him in the offseason, and he lasted only a few more seasons in the NBA before finishing his playing career in Europe and Asia.

But even some of those who stand for the anthem don’t particularly like it. The New York Herald Tribune complained of the anthem’s “words that nobody can remember to a tune that nobody can sing.” (In the anthem’s defense, in 1930 two sopranos sang The Star-Spangled Banner for the House Judiciary Committee to prove the song’s “singability.”) And many criticize The Star-Spangled Banner’s militaristic themes. (The third stanza sings of the blood of the British washing out “their foul footstep’s pollution.”)

Individuals from Ray Charles to former Indiana Congressman Andrew Jacobs, Jr. have proposed replacing The Star-Spangled Banner with America the Beautiful, a Katharine Lee Bates poem set to music by Samuel Ward. Congressman Jacobs introduced several bills to do just that, most recently in 1995. An article in support of America the Beautiful as the new national anthem praised the song:

It is not bellicose or geographically restrained, and all four stanzas can be sung without embarrassment. . . . It acknowledges both urban and rural life. It pays homage to our nation’s past and to those who have sacrificed themselves for their country (without glorifying war), it points to present virtues, and it voices a goal that our nation should aspire to (“brotherhood/From sea to shining sea”).

Today, Fort McHenry’s enormous “garrison” flag, likely raised after the bombardment of the fort, hangs in the Smithsonian’s National Museum of American History. Over the weekend, Baltimore celebrated the bicentennial of the anthem (and the battle that led to its writing) with music, reenactments, period costumes, and plenty of red, white, and blue. President Obama toured Fort McHenry on Friday, inspecting the original manuscript, then heading off to a fundraiser to make some green. The celebration was dampened only by rain and some unexpected blue: Baltimore’s Mayor was taken to the hospital during Saturday’s celebration complaining of shortness of breath and chest pains. Hopefully, these symptoms were not brought on by attempts to sing the national anthem.

Francis Scott Key, The Reluctant Patriot [Smithsonian]

Samantha Beckett (not her real name) is an attorney with more than ten years of experience working in Biglaw. When not traveling back in time, she is most likely billing it. Her writing has been featured in state and federal courts across the nation and in the inboxes of countless clients, colleagues, and NSA analysts. She can be reached at OnRemand@gmail.com.

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