ACLU: Kentucky Funeral-Protest Law is Unconstitutional

^{Category: Free Speech}

Fred Phelps' Westboro Baptist Church is one of the most notorious anti-gay hate groups in the country. Consisting primarily of members of Phelps' family, it has traveled the country for years picketing funerals--most notoriously, Matthew Shepard's--and many other events that mourn for, celebrate, promote, or acknowledge the lives of lesbians and gay men. Not satisfied with this notoriety, Phelps' clan has taken to picketing the funerals of U.S. soldiers with bullhorns and signs reading "THANK GOD FOR IEDS" [improvised explosive devices] and "THANK GOD FOR DEAD SOLDIERS." Phelps' logic--to whatever extent that it can be called logic--is that soldier deaths (and the civilian casualties of 9/11) are signs of God's wrath against Americans for not persecuting lesbians and gays enough.

It is difficult to imagine an advocacy group that has less in common with Westboro than the American Civil Liberties Union, which since 1920 has worked to secure and preserve the civil rights of all Americans. The ACLU's Lesbian and Gay Rights Project, in particular, works to end discrimination based on sexual orientation, to make marriage rights available to same-sex couples, and to support hate crime legislation that extends specific protection to sexual minorities.

But the ACLU is also in favor of protecting the First Amendment, which sometimes means that it must protect the rights of groups whose values run contrary to its own. So when Kentucky passed a vaguely-worded bill to block funeral protests, the ACLU found itself fighting the same law and, in the process, defending the despicable Westboro clan:

The law, which also applies to memorial services, wakes and burials, was aimed at members of that church who have toured the country protesting at military funerals. The church members claim the soldiers' deaths are a sign that God is punishing America for tolerating homosexuality.

The ACLU filed the lawsuit on behalf of Bart McQueary, a Mercer County man who has protested alongside the church members on three occasions. McQueary had no listed telephone number and couldn't be reached for comment ...

The law is so broad, Lutgens said, that people could unknowingly violate it by whistling as they walk down a sidewalk, or by stopping to chat on a public sidewalk near a funeral home. She said the law also could prevent pro-military groups from standing outside memorial services to counter the Kansas demonstrators.

"The commonwealth simply cannot prohibit free expression because it doesn't like certain activities, nor can it suppress the speech of groups or individuals because it doesn't like the message," Lutgens said.

The ACLU has defended some laws restricting protests--such as laws protecting women's clinic access from anti-abortion protesters--but only when they're narrowly written to allow non-disruptive protests. By banning both disruptive and non-disruptive protests, the well-intentioned but sloppy Kentucky law pits the future of the First Amendment against the interests of grieving families. This is exactly the kind of unhappy situation that the Westboro clan revels in.

See also:

• The 2006 Jefferson Muzzle Awards
• 9th Circuit: Schools Can Ban Racist, Anti-Gay T-Shirts
• If David Irving Were an Anti-Muslim Cartoonist