Pickets' Charge: The Funeral Cases Steam Up

Do people who angrily picket the funerals of U.S. soldiers have a constitutional right to do so? That question now is swirling through the nation's court system, and a grim Supreme Court showdown seems likely within the next few years.

Last month, the family of Matthew Snyder, a lance corporal who died in Iraq, won an $11 million judgment from the protesters after a jury decided that the anti-gay picketing (protesters say God is punishing America for tolerating homosexuality) violated the family's privacy rights. But yesterday, a federal judge said Missouri could not enforce two state laws designed to stop the picketing. Approximately 40 states now have such laws on the books. But none of that compares with with is happening in Kansas.

It's hardly unusual, as regular readers know, for timid politicians to craft ambiguous legislation that judges then have to decipher. But sleazy legislators in Kansas have gone one step further: They've passed a controversial measure designed to limit -- but not really, at least not yet -- political and religious crusaders from picketing funerals.

These elected officials passed a law that outlaws the protests but declares itself unenforceable unless and until the Kansas Supreme Court declares it unconstitutional. (Here's the AP story from the Wichita Eagle.) Think about that: These politicians were so cravenly beholden to special interests -- apparently on both sides -- that they managed to pass a law intended to be useless. Yesterday, the Kansas Supreme Court held oral argument to determine whether the "unenforceability clause" in the statute is itself unconstitutional.

In other words, before there is order, if there ever will be order, there will be legal chaos. Will the picketers have the financial ability to fight all these battles themselves? Will First Amendment activists take up the torch and fight for these angry people? And what about the families of the service men and women who, in the great moment of pain, have to endure the shouting and the histrionics? Who is going to side with them?

By Andrew Cohen |  December 6, 2007; 6:18 PM ET
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Posted by: Reader | December 7, 2007 11:22 AM

We are talking here, of course, about the reeking pile of (*&! in Topeka, known as Fred Phelps and family. a.k.a. Westboro Baptist Church. Fred and his family of lawyers (yes, they're mostly lawyers) specifically target the mourning families at the funerals of fallen service men and women with their picket signs and shouts... ...e.g.
"God hates fags!", "Jesus loves IED's!", etc. etc. ad nauseum.

If our society cannot write and enforce laws that prevent the harassment of mourning families of our those who have died defending this country.... ....we may as well pack it in. We are done as a nation.

Posted by: Bill Perney | December 7, 2007 11:28 AM

Emotionally, I'm with Mr. Perney above, only extending his comments to ALL funerals, regardless of military service or cause of death.

However, can we legitimately limit the First Amendment right of peaceful protest simply because we detest the nature of the individual protest? Weren't the First Amendments rights to speech, religion, etc. specifically intended to protect UN-popular opinions?

Sooner or later, either religious bigotry and intolerance will die out, or America won't be worth defending to start with. Meantime, maybe some folks will have to ask the church and cemetery owners to bar all but invited guests. At least for privately-owned cemeteries, that should pass legal scrutiny, and who would dare refuse?

Posted by: JUDGITO | December 7, 2007 12:26 PM


Posted by: Bob_Greiner | December 7, 2007 02:13 PM

Why would the Kansas Leg put such a clause in the statute? Was it designed to further insulate themselves from the controversy and ensure that the legal system took the blame? That it would take several more years and millions more dollars for the law to be thrown out or upheld? All the above?

Posted by: William Smith | December 7, 2007 03:09 PM

Being one of those persons he actually hates, namely gay, I am in the unenviable position of defending Fred Phelps and his right to spew his hatred. I know it's hard and emotional for people seeing a young life being torn away in something as senseless and random as a casualty of war.

However, Fred Phelps and his ilk have the constitutional right to espouse his hateful speech. Trust me, as much as I'd love for bad things to happen to Mr. Phelps (just because I said he has the right to spew his hateful things doesn't mean I would love to test the consistency of his head with a 2x4), he is entitled to his narrow-minded opinions and scream it off the top of his lungs. After all "Congress shall make no law... abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." It's there in black and white.

Posted by: | December 7, 2007 04:40 PM

Anonymous, what about Brandeis' "falsely shouting Fire! in a crowded theater" standard?

The Right to Free Speech is not absolute.

Posted by: DC | December 7, 2007 05:42 PM

Would seem as if this type of behaviour could be considered a violation of public indecency laws or even mental cruelty. Public nudity is against the laws in most communities because it offends most peoples moral sensibilities and makes them uncomfortable. I would argue that Mr. Phelps misquided assemblies do just that with the added feature of direspecting and devaluing another human life.Freedom of assembly should not be discouraged if it does not cause physical or emotional harm to others.

Posted by: B. Rollens | December 7, 2007 11:57 PM

I join the poster above, in that one of my sons is gay. And I agree, the First Amendment gives Phelps and people like him rights. I am fearful of any ruling or legislation which attempts to prevent anyone - even Phelps - from fully exercising First Amendment rights. I believe that is the proverbial slippery slope.

I am also a member of First United Methodist Church of Germantown, where one of our pastors, Elizabeth Stroud, was stripped of her pastoral status by the United Methodist Church because she is a lesbian, in a committed relationship, and "came out" in a beautiful sermon a few years ago. We were alerted that Phelps' group might picket our church one Sunday when we were having a service specially to honor and support Beth. Some of our members immediately recruited nearly a hundred people to stand on the sidewalk, completely surrounding the church, carrying open umbrellas to block the view of Phelps' people for persons coming into the church. As it turned out, Phelps didn't come, but I thought it was a good tactic.

Posted by: Vklip | December 8, 2007 08:23 AM

Somehow I doubt the Founding Fathers were envisioning this truly despicable and sickening behavior as something they needed to protect. I think it is a form of harassment and a violation of privacy.

Communities require all sorts of permits for demonstrations and parades and prohibit disturbing the peace, etc. So while I have to agree that the "free speech" of even these subhuman fiends must be respected, there is no law that says they can exercise that right anywhere and anytime they choose.

Posted by: Marianne Evans | December 8, 2007 03:42 PM

Mr Phelps and his ilk are protesting to draw attention to themselves. They have every right to do so. If people are really concerned and want to show how they feel about Mr. Phelps they should show up at the funerals and show their respect for the dead soldier...and completely ignore Mr. Phelps. They do a really good job of making asses out of themselves they don't need our help, but the families of the dead certainly do.

Posted by: jlp | December 9, 2007 09:06 AM

A funeral is a religious ceremony for the family of the deceased. Being that, I would think the courts should side with the family and as these people are disrupting a family religious rite, it would be correct that they should be arrested and charged with disorderly conduct.
I also think they, the Phelps family, are taking the First Amendment way too far. They are not assembling peacefully, and they are interfering another person's right to pursue their religion.

Posted by: jholzhey | December 10, 2007 11:03 AM

The constitution does not give you the right to infringe upon other's rights with your religion. For most people funerals are a religious ceremony. Phelps can preach whatever he wants. When he disrupts religious services of others is where he crosses the line.

Posted by: Dr Ed Intelligence | December 10, 2007 11:13 AM

To jholtzey and Dr. Ed Intelligence: Funerals are not necessarily religious in nature; atheists, for example, would not wish to have a religious funeral. That said, while the Phelps family are indeed disgusting pieces of trash, I have to agree with those posters who believe that they are unfortunately protected by the First Amendment. They have at the very least crossed the lines of bigotry, though, and I like the suggestion of the person who mentioned that his church's members held open umbrellas!

Posted by: Dee | December 10, 2007 12:57 PM

If the Bush administration can legally establish "free speech zones" where protesters are cordoned out of site of the President, I see no reason why the government cannot establish similar zones to contain protesters at military funerals.

Posted by: Dave in NY | December 10, 2007 04:58 PM

Ladies and gentlemen, as stated previously, I find Mr. Phelps as disgusting as heck. As stated previously I think rather lowly of his ideas, and would not mind him going through some grief.

However, once we start limiting unpopular speech, we reach a slippery slope. The Justice Brandeis "shouting fire" analogy doesn't quite hold up for his actions are not provoking a stampede. I understand that a funeral is mentally and emotionally stressful to say the least. To lose someone in something as random as war where dumb luck can mean the difference between life and death is even more heart wrenching. Seeing scum such as Mr. Phelps and his ilk at the funeral of someone who died bravely in the service of his or her country is the last thing you want. However, the same way I would love for Mr. Phelps to meet a 2x4 on his cranium, I am also adult enough to understand that as much as he hates me for being gay, he is entitled to his bigoted and close-minded opinion.

If not who's next? Where do we draw the line? No, ladies and gentlemen, let this person (and I use the word loosely) have his picket. Instead like the yellow-umbrella brigade, stand up to him and exercise the same First Amendment rights he is exercising to show the error of his ways.

It looks as Mr. Phelps is a bully. When someone else stands up to him, he backs off. So why threaten the rights of all to shut up a whacko. What's next, me being banned from holding hands in public with a guy?

The alternative is worse than this idiot making a jackass of himself, and yes, hurting the feelings of those in mourning. But fortunately feelings can be mended and we are stronger than that. Trust me, siding with a hate-monger leaves a disgusting taste in my mouth, but the right to hate and express it is more important.

Posted by: | December 10, 2007 05:11 PM

The incredible amount of hate I found in every Christian denomination I attended and researched was why I left organized religion behind 30 years ago - for good.

This group is more extreme, but I have to give them props for being up front about it, most churches are not. In this election season we are seeing some the ugly hatred born of competition (for tithes) because there is a Mormon running, which exposes the hatred many Protestant sects have for the Mormon sects.

But it's only a small glimpse into the competitive hatred I found in all of them; the Baptists hate the Jews, and Catholics and anybody non-Baptist is going to hell. <---period.
Just one example.

I took the morals my mother taught me and made them the rules of my life, and never needed a church to do so. I took the money I would have given a church - to build bigger churches to brag about - and put it use in my community for people who need it. I am a better person for not living with all that hatred organized religion teaches - for it's own greedy purposes.

Posted by: LALA | December 11, 2007 01:05 AM

Those kooks are infringing on the Constitutional rights of the mourners to practice their religion.

Posted by: JohnnyE | December 11, 2007 03:16 PM

Of course, the sad thing is no one actually cared about these protestors when they were just picketing the funerals of gay non-military people. That was totally okay.

Posted by: Brad | December 11, 2007 03:28 PM

My son is in the Army and he is more than likely headed for Iraq for the forth time. If something were to happen to him (God Forbid) and the Phelps show up to protest I can honestly say they will be sorry!

Posted by: Tommy Miller | December 14, 2007 02:53 PM

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