Bills to protect mourners violate First Amendment

By |2018-01-16T09:36:24-05:00April 13th, 2006|News|

By Dawn Wolfe Gutterman

LANSING – When members of the Westboro Baptist Church picketed the funerals of Matthew Shepard and other LGBT victims of violence or AIDS, the gay community was on its own.
Now that the followers of Fred Phelps have taken a variation on the church’s gay-hating theme to the funerals of U.S. service members killed in Iraq, 27 states have either passed or are considering laws that would limit demonstrations at funerals. One Michigan U.S. Representative, Republican Michael Rogers, has introduced a bill to restrict protests outside of national cemeteries.
While well meaning, most of the bills don’t pass constitutional muster, according to Jay Kaplan, staff attorney of the ACLU of Michigan’s LGBT Project.
“While the ACLU of Michigan abhors the insensitivity of Reverend Phelps and his followers and the hateful and disgusting message they wish to convey, we believe that most of the legislation being introduced and passed is unconstitutional,” he said. “We can’t weaken the First Amendment no matter how disturbing and upsetting are the messages of others.”
According to an April 4 Chicago Tribune article on the proposed anti-protest laws, “Most of the proposed laws, which already have been approved in half a dozen states, require picketers to keep back 300 or 500 feet from churches or funeral homes where services are being held, and they limit the protests to an hour before or after the service.”
According to the Tribune article, Phelps and his followers began protesting at the funerals of U.S. service members last year, claiming that the dead service members are going to “Hell” because, according to Phelps, “This evil nation has taught from the cradle to the grave that it’s OK to be gay. Now God is over in Iraq picking off America’s kids. They turned America over to fags, now they are coming home in body bags.”
While Rogers’ bill would limit protests outside of national cemeteries, bills now under consideration in Michigan’s state House and Senate would limit protests outside of all funerals, with violators being charged with a misdemeanor. A separate Senate bill would require protestors to apply for a permit and allow local municipalities to “prohibit certain conduct at or near the locations in which a funeral service is being held.”
Rogers’ bill and the state bills were introduced in reaction to the March 27 protest by three members of Phelps’ church at the funeral of Army Cpl. Nyle Yates III, who was killed in Iraq on March 17, according to The Detroit News.
“There has to be a sense of decency,” said Rogers. “America has a responsibility to ensure that the families of our fallen heroes can grieve in peace and with dignity.”
“It’s ironic that legislators are concerned about Phelps and funerals when it deals with the military, but have never spoken up when Phelps and his family protested at Matthew Shepard’s funeral or funerals of persons who had died from HIV/AIDS,” said Kaplan.
According to the Tribune article, Phelps’ church has held “thousands” of anti-gay protests since 1991, including the funerals for Shepard and for President Bill Clinton’s mother.
Rogers’ office did not return a phone call from BTL asking his position on Phelps’ protests of the victims of anti-gay violence.
Steve Ralls, director of communications for Servicemembers Legal Defense Network, agreed that though the protests are repellent, banning them is a dangerous step.
“Fred Phelps’s funeral protest are distasteful and disrespectful to both military families and the LGBT community,” he said. “While SLDN does not, in any way, condone those protests, we are concerned that legislation which curtails Phelps’s activities also leads us down a slippery slope by which the rights of our own community to freely express our views are placed in jeopardy.”
Ralls also cited the creativity of groups who have shielded mourners from Phelps’ followers.
“We commend those who have staged peaceful counter protests to disavow the Phelps’ disruptions at military funerals,” he said. “Rolling back constitutional protections for one group, however, rolls them back for all groups. Our armed forces fight and sacrifice to ensure our ability to freely express our views, no matter how outrageous and offensive they may seem to some, and we should all defend that right alongside them.”
Kaplan said that the current spate of bills is a political ploy.
“The politicians introducing these bills know that they cannot pass constitutional muster,” Kaplan said. “They’re paying lip-service, so when the courts strike down these bills they can blame activist judges and groups like the ACLU and say that they [the legislators] did something.”
Kaplan cited the creativity of attendees at both LGBT funerals and military funerals in the face of Phelps’ followers.
“When Phelps showed up at Matthew Shepard’s funeral, the participants themselves made a wall to shield mourners from the hate messages,” Kaplan said. “And that is also what can be done with the military funerals.” Kaplan also cited the recent Michigan protest, during which hundreds of members of the Patriot Guard, a motorcycle group made up of veterans and others, drowned out the three Westboro members who showed up.
“We’re not supporting [Westboro’s] message, but their right to speak their message,” Kaplan said. “The answer to hate speech is more speech.”

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Between The Lines has been publishing LGBTQ-related content in Southeast Michigan since the early '90s. This year marks the publication's 27th anniversary.