Alaska News

Silencing protests of gays at funerals unconstitutional

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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."

-- First Amendment to the U.S. Constitution

The U.S. Supreme Court says it will take up a Kansas case this fall certain to test Americans' dedication to the Constitution and the depth of our humanity; a case that could allow the worst among us to continue wrapping themselves in the law of the land to torment the grieving among us. Or it could silence them at great peril to our freedom.

"It is a fair summary of history to say that the safeguards of liberty have been forged in controversies involving not very nice people," former Supreme Court Justice Felix Frankfurter observed in his 1950 dissent of United States v. Rabinowitz. He could have been writing about the Kansas case.

Forty-seven states and the District of Columbia have lined up with Kansas in a brief to the high court supporting Albert Snyder, whose 20-year-old son, Matthew, a Marine lance corporal, was killed in Iraq.

Matthew Snyder's 2006 funeral in Westminster, Md., drew protesters from defrocked lawyer Fred Phelps' anti-gay Westboro Baptist Church of Topeka, Kansas. The fundamentalist Christian church -- which knew nothing of Matthew Snyder before the protest -- pickets the funerals of war dead. Why? It claims their deaths are God's punishment for our tolerance of homosexuality -- and as revenge for an attack on the church some years ago.

The protesters showed up at Matthew Snyder's funeral and placed themselves directly in front of the St. John's Catholic elementary school and across the street from a public school. They carried signs emblazoned with messages such as, "Thank God for Dead Soldiers," "God Hates Fags," and "You're Going to Hell." As an added treat, there was a depiction of two men having sex. The church also posted on its website a nauseating, gut-wrenching "epic poem" titled, "The Burden of Marine Lance Cpl. Matthew A. Snyder." It was beyond vile.

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Snyder sued the Phelps family and its church in U.S. District Court for defamation, intentional infliction of emotional distress, intrusion and publication of private facts. In October 2007, a jury awarded him $10.9 million -- $2.9 million in compensatory damages, $6 million in punitive damages and $2 million in punitive damages for emotional distress. The court reduced that to $2.1 million, but on Sept. 24, the 4th U.S. Circuit Court of Appeals reversed the verdict, citing First Amendment protections. As an added slap, Snyder was handed a $16,500 bill for the protesters' legal bills.

Only two states declined to sign on with Kansas -- Virginia and Maine. Virginia Attorney General Ken Cuccinelli said he had free speech concerns. It is unclear why Maine balked.

The states argue the appeals court ruling threatens their funeral protest laws; that those laws are constitutional because they protect privacy interests and the First Amendment rights of a "captive audience," a doctrine that allows curtailment of speakers' free speech rights when they abridge a listener's right to privacy.

The Supreme Court says it will consider in October whether the protesters' gay-bashing message at funerals has First Amendment protection. Its decision is sure to be controversial, but perhaps not a surprise. The high court in the past generally has supported free speech -- no matter how abhorrent it may be.

The justices' choice is simple. Either the church, which by its own account has joined in more than 43,000 protests of gays, will be free to hide behind the Constitution and terrorize the grieving families of our war dead -- or it will be silenced. Most Americans, I suspect, would endorse blocking the protests. They have lined up to support the grieving family, and it would seem the humane thing to do.

After all, Snyder's anguish, his frustration and his anger are almost palpable, and his family has suffered the worst America has to offer at the hands of the Phelps family and its loathsome church.

While my heart, too, wants Snyder to prevail, I pray he does not. The decision he seeks from the court would rattle America to its bedrock, endangering who and what we are, sacrificing rights won by blood.

Despite his agony, it is too steep a price to pay.

Paul Jenkins is editor of the Anchorage Daily Planet.

PAUL JENKINS

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Paul Jenkins

Paul Jenkins is a former Associated Press reporter, managing editor of the Anchorage Times, an editor of the Voice of the Times and former editor of the Anchorage Daily Planet.

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