States are rushing to limit when and where people may protest at funerals — all because of a small fundamentalist Kansas church whose members picket soldiers’ burials, arguing that Americans are dying for a country that harbors homosexuals.
During the 1990s, the Westboro Baptist Church of Topeka, Kan., went around picketing the funerals of AIDS victims with protest signs that read, “God Hates Fags.” But politicians began paying more attention recently when church members started showing up at the burials of soldiers and Marines killed in Afghanistan and Iraq.
Legislation is being considered in at least 14 states, and several of the bills moving quickly, with backing from legislative leaders and governors.
If they pass, the bills could set up a clash between privacy and free speech rights, and court challenges are almost certain.
“We’re not proposing to silence the speech of the Westboro Baptist Church, as offensive as most of us find that,” said Kansas Senate Majority Leader Derek Schmidt, a Republican. Instead, he said, he is trying to achieve a balance that respects “the rights of families to bury their dead in peace.”
The church has about 75 members, most of them belonging to the extended family of Westboro Baptist’s pastor, the Rev. Fred Phelps. The church is an independent congregation that preaches a literal reading of the Bible.
Shirley Phelps-Roper, Phelps’ daughter and an attorney for the church, said states cannot interfere with their message that the soldiers were struck down by God because they were fighting for a country that harbors homosexuals and adulterers.
Lawmakers are “trying to introduce something that will make them feel better about the holes we’re punching in the facade they live under,” Phelps-Roper said. “If they pass a law that gets in our way, they will be violating the Constitution, and we will sue them for that.”
14 states weigh new laws
Among the states considering such measures: Illinois, Indiana, Iowa, Kansas, Kentucky, Missouri, Nebraska, Ohio, Oklahoma, South Dakota, Vermont, Virginia, West Virginia and Wisconsin.
Some of the bills specify noisy, disruptive behavior or signs with “fighting words,” as in Wisconsin. Some bar protests within one or two hours before or after a funeral starts; others specify distances ranging from 10 car lengths to five blocks away; some include both.
Violations can bring fines of a few hundred dollars, up to 30 days in jail, or more. Wisconsin is calling for fines of up to $10,000; one of five Oklahoma bills would set a one-year jail sentence.
Missouri’s bill was named for Army Spc. Edward Lee Myers, 21, whose wife went to his funeral an hour early to try to avoid protesters. They were already across the road, holding signs that read “God Hates Fags” and “God Made IEDs,” a reference to roadside bombs.
‘Couldn’t even pay my last respects’
Her 5-year-old son kept asking why “mean people” were outside, undercover agents were in the church, and she worried that angry relatives might start a fight.
“I couldn’t even pay my last respects because of everything that was going on,” Jean Myers said.
Legislation against funeral protests was also introduced in West Virginia last month after a small knot of protesters from Westboro Baptist demonstrated outside a memorial for the 12 men killed in the Sago Mine disaster. The protesters held signs reading, “Thank God for Dead Miners,” “God Hates Your Tears” and “Miners in Hell,” arguing that the miners’ deaths were a sign of God’s wrath at America for tolerating gays.
“It’s just inhuman for a group that says it’s coming in the name of the Lord to protest a funeral,” said state Delegate Jeff Eldridge, a co-sponsor of the West Virginia bill.
Abortion protest law guideline?
If such restrictions are challenged, the courts will probably look to rulings on laws governing abortion protests, constitutional scholars said.
The U.S. Supreme Court struck down a Florida ban on peaceful picketing within 300 feet of an abortion clinic, but allowed restrictions on behavior that impedes access to a clinic. However, the courts have allowed restrictions on picketing in front of doctors’ houses, saying privacy trumps free speech.
The question is whether a church, funeral home or cemetery is considered private or public during a ceremony, said Eugene Volokh, a law professor at the University of California at Los Angeles.