Topeka House and Senate negotiators agreed Tuesday on legislation restricting protests at funerals to no closer than 500 feet, but crafted it with an eye toward surviving a court challenge.
The bill was prompted by the Rev. Fred Phelps and his followers, who protest throughout the nation at funerals of U.S. troops killed in combat. They contend the deaths are God's vengeance for the U.S. harboring homosexuals and that their protests are a form of religious expression.
If both chambers accept the compromise, it will go to Gov. Kathleen Sebelius, who is expected to sign it. Violations would be a misdemeanor, punishable by up to six months in jail and a $1,000 fine.
State law now says only that it's illegal to picket "before or about" a funeral service.
Kansas is among 31 states considering legislation this year to restrict protest activities around funerals, according to the National Conference of State Legislatures. Eleven have enacted laws - Georgia, Indiana, Iowa, Kentucky, Mississippi, Missouri, Nebraska, Oklahoma, South Dakota, Virginia and Wisconsin.
Negotiators added language making it illegal for protesters to make any noise or diversion that "disturbs or tends to disturb the peace or good order of a funeral." That wasn't in either the House and Senate bills.
A key feature was acknowledging exceptions to the 500-foot buffer zone for streets, sidewalks and other public forums. the bill also makes it illegal to obstruct or prevent the intended use of a street, public sidewalks or other public forum.
"It's effective and enforceable. It's not as tough as I would like, but I don't know if you could get as tough as I would want past the courts," said Rep. John Edmonds, his chamber's lead negotiator.
On Monday, the American Civil Liberties Union filed a federal lawsuit against the Kentucky law on funeral protests, claiming sections of the law go too far in limiting freedom of speech and expression.
Sen. Pete Brungardt, his chamber's chief negotiator, said he wasn't concerned about the Kentucky lawsuit.
"My understanding is they didn't acknowledge any public space and that was the trouble," said Brungardt, R-Salina.
Initially, the Senate had a buffer zone of 300 feet and exempted streets, sidewalks and other public spaces because the U.S. Supreme Court has ruled those areas are public venues.
The House tripled that distance to 300 yards and made it unlawful to obstruct or prevent the intended uses of public streets and sidewalks or other public space.
While the House didn't acknowledge public space in its version, Edmonds, R-Great Bend, said, "I want this to win when it goes into the judicial system."
The compromise also says the state will reimburse local governments for any money a court orders them to pay to anyone winning a challenge against the law. It also sets up a tax deductible fund to which Kansans could contribute to help pay legal costs for defending the law. Negotiators agreed to give a 25 percent tax credit for contributing to the fund.
Last month, Shirley Phelps-Roper, Phelps' daughter, said the legislation will guarantee a lawsuit. "They can't put us out of sight and sound of our targeted audience."