CROSSING THE LINE: RECONCILING THE RIGHT TO PICKET MILITARY FUNERALS WITH THE FIRST AMENDMENT
MAJOR JOHN LORAN KIEL, JR.*
You might think you can pass laws that stop us from preaching at the funerals of your Godless brats, but it isn't going to happen. The Messengers of God do not stop preaching the truth just because you pass laws. Here's a little secret. Kansas has had funeral picketing laws for years and we still picket funerals in Kansas!!!1
When Albert Snyder arrived at the St. John's Roman Catholic Church in Westminster, Maryland to bury his only son-Matthew, a Marine Lance Corporal who died in Iraq a few days earlier-he was greeted by a group of protestors carrying signs that read "Semper Fi Fags" and "You're Going to Hell."2 The protestors were members of the Westboro Baptist Church (WBC) headquartered in Topeka, Kansas.3
Snyder sued the church for invading his privacy and for intentionally inflicting emotional distress on him during the funeral service.4 A federal jury ultimately agreed with Mr. Snyder and awarded him $2.9 million in compensatory damages, $6 million in punitive damages for invasion of privacy, and $2 million for emotional distress.5 The lawsuit was the first of its kind filed against the WBC and it is unlikely to be the last.
Members of the WBC have gained notoriety over the past several years by staging protests at a number of high-profile funerals throughout the country. The WBC first gained national attention in 1998 when it conducted an antigay rally at the funeral of Matthew Sheppard, a University of Wyoming student who was brutally murdered because he was gay.6 Since then, WBC members have protested memorial services for victims of 9/11,7 memorial services for victims of the Columbine massacre,8 and the funerals of twelve miners who suffocated in a coal mine in Sago, West Virginia.9 They also publicly celebrated the deaths of five young Amish girls who were savagely executed by a pedophile at their elementary school in Pennsylvania.10 Members of the group even protested the funeral of America's beloved Mister Rogers.11
While the church generally garners a few disparaging headlines from protesting these high-profile memorials, it has managed to heap almost universal condemnation upon itself for picketing the funerals of fallen servicemembers. More than thirty-eight states have introduced legislation banning protests at military funerals and twenty-nine have already approved such measures.12 In 2006 President Bush signed the Respect for America's Fallen Heroes Act (RAFHA), banning funeral protests at national cemeteries under the federal government's control. 13
Generally, these statutes aim to diminish funeral picketing in a couple of ways. Some make it a crime to shout, whistle, yell, or wave signs for a certain period of time before and after a funeral service is held.14 Others incorporate buffer zones ranging from 100 to 2000 feet that bar any activity within a certain distance of the ingress or egress of a church, funeral home, or cemetery where a funeral service or memorial is taking place.15
This article examines the constitutionality of funeral picketing laws at the state and federal level. Although the article focuses on funeral protest forums in the state of New York, the legal tests and standards discussed therein apply to funeral picketing laws in every state. This article focuses on New York because it presents a unique opportunity to demonstrate how state funeral picketing laws and the RAFHA apply to the many private and national cemeteries located within the state, and how the Supreme Court would apply a distinct set of laws to cemeteries located on military installations like West Point, New York.
The article will explore these funeral picketing laws in a number of different contexts. First, it will examine two distinct funeral picketing bills originally considered by the New York Senate and State Assembly before the governor signed the Senate version into law in 2008. After thoroughly analyzing both bills under the First Amendment, the article will conclude that the Assembly bill impermissibly favored certain forms of expression over others and its buffer zone restriction stifled protected speech. The Senate's buffer restriction, embodied in the current statute, is lawful but its disorderly conduct provisions are unconstitutionally vague. Second, the article will propose a model statute that addresses these shortcomings and incorporates some of the best features of other states' funeral picketing laws. Third, the article will examine the RAFHA and conclude that most of the statute comports with the First Amendment except for its untenable buffer zone restrictions. Lastly, the article will explain how the Supreme Court has made it virtually impossible to stage protests on military installations, especially for groups like the Westboro Baptist Church.
The Westboro Baptist Church
It is almost impossible to understand the philosophy of an organization like the Westboro Baptist Church without understanding something about its founder, Fred Waldron Phelps Sr. Phelps had "as normal and beautiful a home life as anyone ever wanted" according to one of his relatives.16 Phelps's mother died of throat cancer when he was five years old, leaving him and his younger sister to be cared for by their maternal aunt when his father was away on business.17 Phelps's aunt later died in a car crash, robbing him of the influence of the two most prominent women in his life.18 Despite his incredible loss, Phelps excelled in grade school and ended up ranking sixth in his graduating high school class.19 Phelps's stellar grades enabled him to fulfill a dream that he had been working for all of his young life-accepting an appointment to the United States Military Academy (USMA).20 Phelps was only sixteen when he graduated high school so he could not enter West Point until after his next birthday.21 He spent most of the next year preparing to attend West Point.22 A few months before he was eligible to report, Phelps attended a religious revival at a local Methodist Church that would forever change the direction of his life.23
Phelps abandoned his dreams of attending West Point and instead became an ordained Southern Baptist minister, or "Primitive Baptist preacher" as he describes himself.24 Phelps's first brush with controversy came in 1947 when he conducted a religious revival to convert a large group of Mormons living in Vernal, Utah.25 His preaching angered the crowd so much that they rushed the platform and tried to yank him from the stage.26 In 1951, TIME magazine ran a story about him preaching to groups of college students about the "sins committed on campus by students and teachers," sins that included profanity, filthy jokes, and lusting after the flesh.27 Shortly after that, in 1955, Phelps and his wife moved to Topeka, Kansas where he launched the WBC.28
There are approximately seventy-five members of the WBC, most of whom are related to Phelps.29 One reporter who visited the church observed that the building itself "feels like a bunker-from its chain-link fence to its sign pockmarked from gunshots and the enormous American flag hanging at half staff and upside down in front of the building."30
Another reporter noted that inside the church the "fluorescent lights shine on no crosses or paintings or statues, just a world map and a few signs. 'Thank God for Maimed Soldiers,' reads one."31 Members of the church are expected to pay ten percent of their earnings to the church, live a secluded lifestyle, and travel around the country spreading the church's inflammatory message.32 Members of the WBC have taken part in over 25,000 protests since they picketed the funeral of Matthew Shepard in 1998.33 Most of the WBC's protests center on one topic- homosexuality. Phelps's campaign against homosexuality intensified when Democratic politicians started courting gay voters.34 Phelps started protesting locally in Topeka against people that he suspected were gay and against local businesses he suspected employed gay people.35
Members of the WBC even protested the funerals of people Phelps suspected had died of AIDS.36
After fifteen years of campaigning against homosexuality, Phelps's congregation began to fix their sights on the funerals of servicemembers killed in Iraq and Afghanistan. Members of the church began protesting military funerals in the summer of 2005.37 The church's decision to picket Soldiers' funerals is as perplexing as it is disturbing. Apparently Phelps and his followers believe that God is killing American Soldiers because they defend a government policy that supports and condones homosexuality.38 One might suspect that the "don't ask, don't tell"39 policy would factor into the WBC's disdain for the military, but the group has never gone on record as saying so. Nevertheless, WBC members have conducted hundreds of military funeral protests over the past two and a half years.40 Members of the group typically chant and carry signs that read "Thank God for Dead Soldiers," "God Hates Fag Soldiers," "Thank God for IEDs," and "God Blew Up the Soldier," among other slogans.41
While the WBC has garnered significant media publicity from protesting high profile funerals, it has also drawn unwanted attention from a number of states and the federal government. The U.S. Congress and thirty-eight states have passed funeral protest laws designed to curb the WBC's practice of picketing military funerals. 42 A number of other states are currently in the process of enacting similar legislation, New York being the most recent among them. The next two sections of this article will outline the process the Supreme Court has established...