I have not studied the matter, but I don't think that makes sense. Are you saying that legislators don't take the Constitution into account when drafting legislation? And was it just a coincidence that the drafters of the voluntary protocols for the treatment of flags happened to pick the language that conformed to the First Amendment? A more likely scenario, I would think, is that the legislature started off with language that respected the First Amendment and that the court cases didn't come along until someone tried to make the voluntary standards mandatory.