Limiting speech at funerals: analysis and proposal for jurisprudence.

• Author: Rayfield, Cindy

INTRODUCTION

The members of Westboro Baptist Church (WBC), led by Pastor Fred Phelps, believe that God is punishing America. (1) The church members consist mostly of Pastor Phelps's family, and they believe that America's acceptance of homosexuality and general moral decline is causing God to punish the country through events such as the September 11th attacks, (2) Hurricane Katrina, (3) and the war in Iraq. (4) For years, WBC has proclaimed its gospel by picketing different catastrophes. (5) Shortly after September 11, 2001, WBC members were in New York City holding signs that read, "THANK GOD FOR SEPT. 11" and "FDNY IS A FAG FIRE DEPARTMENT." (6)

WBC shares its interpretation of God's word at the funerals of American soldiers who died in Iraq. (7) WBC first sends news releases announcing its intent to picket a soldier's funeral. (8) The press releases usually include messages thanking God for improvised explosive devices (IEDs) and stating that God has become a terrorist because of America's "fag sins." (9) WBC also claims that God is killing soldiers because its church property near the home of Shirley Phelps-Roper was bombed with an IED. (10)

WBC members have protested the funerals of at least eighty American soldiers. (11) Typically, the protestors attend the funerals carrying signs that read, "THANK GOD FOR DEAD SOLDIERS," "AMERICA IS DOOMED," and "THANK GOD FOR IEDS" while dragging the American flag around on the ground. (12) The protests outrage many citizens and state legislators and has resulted in the introduction and passage of legislation banning or limiting funeral protests in several states. (13) In response, the protestors claim that the legislation violates their First Amendment rights of freedom of religion and freedom of speech. (14)

Pastor Phelps testified before the Senate Federal and State Affairs Committee in Topeka, Kansas, saying "that it [is] illegal to adopt a law that restrict[s] his free speech. We [cannot] be lawfully moved out of sight of our target audience." (15) The protestors also claim that the new legislation restricts their freedom of religion. (16) According to Shirley Phelps-Roper, an attorney for the church and daughter of Pastor Phelps, "the group is simply practicing its religion, which is protected by the Constitution." (17)

The First Amendment protects the rights of freedom to speech and religion. (18) These freedoms allow individuals to speak and exercise their religious beliefs without undue government influence. The new legislation impinges upon those First Amendment rights.

This Comment discusses the new legislation and applies the current tests to predict whether these laws will be upheld in courts. This Comment also proposes jurisprudential standards or legislative solutions to the impending clash between the parties. Specifically, the second part of this Comment discusses the existing and pending legislation for regulating funerals. By applying the test set forth in Department of Human Resources v. Smith, the third part analyzes whether the new legislation violates the First Amendment's Freedom of Religion Clause. (19) The fourth part discusses time, place, and manner restrictions on the freedom of speech, and analyzes the legislation under the Ward "public forum" test. (20) The fifth part analyzes the legislation under the fighting words doctrine. (21) The sixth part provides analysis and a proposal for jurisprudence, and the final part provides a summary and conclusion.

DISCUSSION OF LEGISLATION REGULATING FUNERAL PROTESTS

Kansas was the first state to enact a law that limits protests at funerals. (22) After being charged under the Kansas statute, Pastor Phelps and his followers filed suit seeking a declaration that the statute was unconstitutional on its face and seeking an injunction from further prosecutions. (23) The statute was eventually found to be constitutional, but while the first appeal was pending, Kansas amended the statute to include the words "actual malice." (24) This modification cured any constitutional deficiencies regarding vagueness. (25)

Since the members of WBC have amplified their protests, new legislation has been introduced about the country. (26) For example, WBC protested funerals in Wisconsin, (27) and in response to the increased picketing, Wisconsin was one of the first states to enact a law limiting the protests at funerals. (28) The Wisconsin law prohibits protestors from blocking access to the funeral, disrupting the service within 500 feet of the facility, or obstructing any vehicles that are connected to the funeral. (29)

Numerous other states have also enacted or began to enact legislation banning protests of funerals. (30) A few days after Wisconsin enacted its law, Missouri also passed a ban. (31) The Missouri statute bans protests at funerals one hour before and after a funeral. (32) The City of St. Joseph, Missouri, passed a municipal ordinance to limit funeral protests one month before the Missouri state legislature did the same. (33) The St. Joseph ordinance bans protests "in front of or about any church, cemetery, or funeral establishment" one hour before a funeral service until one hour after a funeral service. (34) WBC was quick to contact the city and question the wording. (35) In response to a planned funeral protest by WBC, Indiana also passed legislation banning protests at funerals. (36) The Indiana statute prohibits protestors within 500 feet of a funeral. (37)

Members of United States House of Representatives and Senate are considering federal legislation to limit funeral protests. (38) Mike Rogers, a Michigan Congressman is planning to introduce legislation that would put a 500-feet limit between the protestors and the funerals attendants. (39) Evan Bayh, an Indiana Senator has already introduced similar legislation in the Senate. (40) With the new legislation pending and the members of WBC claiming it encroaches upon their constitutional rights, a challenge to the legislation will soon be in the courts. (41)

Margie J. Phelps, a WBC member, identified the problems with the legislation as two-fold. (42) The first problem identified by WBC is that the laws target a specific religious message. (43) Margie J. Phelps points out that the Supreme Court in Hialeah held that regulations cannot target a specific religious message and that the Court will look to the legislative intent even if a law is written in a neutral-sounding way. (44) If the Court finds an illegal motive or purpose, then the law is invalid. (45) Margie J. Phelps also suggested that the laws are overbroad, (46) She stated:

The government can impose a reasonable time, place and manner limit on speech, if it has a legitimate interest, if it imposes the least restrictive limit, if it is content-neutral, and if it [does not] completely remove the message from the intended audience. In every respect these laws fails. The government doesn't have a legitimate interest. Even if it claims a legitimate interest in the quietude of funerals, that interest is not being accomplished. (47) With these laws already enacted and the church promising to continue its protests, the courts will inevitably have to determine whether the new laws violate the First Amendment.

THE NEW LEGISLATION AND THE FIRST AMENDMENT RIGHT OF FREEDOM OF RELIGION

To determine if the government has violated an individual's freedom of religion, the courts apply the test from Department of Human Resources v. Smith. (48) In applying the Smith test, a court examines whether the law is facially-neutral and generally applicable. (49) If the law is neither facially-neutral nor generally applicable, then the court will apply strict scrutiny. (50) If the court applies strict scrutiny, the government must prove that the statute promotes a compelling state interest and is narrowly tailored to serve that purpose. (51)

If the law is facially-neutral and generally applicable, the court will determine whether an exception applies. (52) The first exception is when the case is an employment case, and the second is when the case is a hybrid situation. (53) A hybrid situation is a claim that alleges a violation of the Free Exercise Clause in combination with another constitutional right. (54) If the law is facially-neutral and generally applicable and is not one of the exceptions, then the court will apply the rational basis test. (55) The rational basis test is the lowest level of scrutiny that the government must overcome to sustain the law. (56)

Thus, if the WBC members are arrested under the Wisconsin law and take the issue to court making a freedom of religion claim, the Smith test will be used to determine the constitutionality of the law. The first issue would be whether or not the Wisconsin law is facially-neutral and generally applicable. (57) The Wisconsin statute says that "[n]o person may do any of the following during a funeral or memorial service, during the [sixty] minutes immediately preceding the scheduled starting time of a funeral or memorial service ... or during the [sixty] minutes immediately following a funeral or memorial service." (58) The law appears to be facially-neutral because it reads "no person" without specifically mentioning any group or religious organization. (59) The court would next address whether the statute is generally applicable.

Proving that the statute is generally applicable may be a more difficult. The situation with WBC is similar to the situation in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah. (60) When the City of Hialeah heard that a particular religious group was moving into its area, the city enacted certain ordinances that would impede the church's performance of religious sacrifices. (61) In some ways, the states are reacting to WBC precisely as the City of Hialeah reacted to the Church of the Lukumi Babalu Aye. The states are responding to the possibility that the WBC members will journey to their states to perform...