AP

Judge Roy Moore, who led a crusade against gay marriage as Alabama’s Supreme Court chief justice, has weighed in on the NFL players’ protest. Kneeling during the National Anthem, the Republican Senate candidate contended, is a violation of federal law.

Speaking to TIME Magazine’s Nash Jenkins, Moore remarked that taking a knee during the national anthem was “against the law.” He then went on to explain “the act of Congress” that outlawed sitting during the national anthem:

“It was a act of Congress that every man stand and put their hand over their heart. That’s the law. That’s in the United States Code. 36-USC-301. I back the President in upholding respect for the patriotism for our country, on two grounds. One, it’s respect for the law. If we don’t respect the law, what kind of country are we going to have? Two, it’s respect for those who have fallen and given the ultimate sacrifice. I’m surprised that no one brought this up.”

But the section of U.S. Code Moore referred to does not, in fact, mandate standing when the Star-Spangled Banner is played. It’s really more of a suggestion — and one without punishment if the rule is not followed.

The law states that members of the military should salute during the national anthem and “all other persons present should face the flag and stand at attention with their right hand over the heart, and men not in uniform, if applicable, should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart.”

“Should” is the operative word here. Eugene Volokh, a law professor at UCLA School of Law, told CBS News that the presence of a conditional connotes a recommendation, not a requirement. “It’s not clear to me that 36 U.S.C. 301 was ever meant to be legally binding — it says what people ‘should’ do rather than what they ‘shall’ or ‘must’ do,” he said.

Advertisement

Even if the law was intended to be legally binding, Volokh added, it would be negated by the First Amendment.“The court held in West Va. Bd. of Ed. v. Barnette, held that even public school students can’t be required to salute the flag,” he said.

On Wednesday, NFL Commissioner Roger Goodell said after two days of meetings, that NFL players “should” stand during the national anthem — but that the league wouldn’t make it a requirement to do so.