Funderal picketing law
Topeka A key lawmaker said Tuesday he was perplexed by Attorney General Paul Morrison's legal strategy in a challenge involving the new law restricting demonstrations at funerals.
"It's a bit more circuitous than what we had contemplated," Senate Majority Leader Derek Schmidt, R-Independence, said. "He's taking a gamble."
The Legislature approved a measure that creates a buffer zone in which picketing is prohibited around funeral sites. The measure was in response to national and statewide outrage over Topeka anti-homosexual minister Fred Phelps' demonstrations at funerals of war veterans.
Part of the law requires that before it will be enforced, Morrison must elicit a ruling from the Kansas Supreme Court by filing a pre-challenge to the law's constitutionality.
Lawmakers said they wanted court clearance before enforcing the law in order to avoid litigation that could have awarded damages to Phelps and his Westboro Baptist Church.
Phelps and family members protest the funerals, carrying signs such as "Thank God for dead soldiers." Phelps claims the soldiers' deaths are part of God's punishment for toleration of homosexuality in the United States.
But Morrison's recently filed motion asks the court to strike down the part of the law requiring him to challenge the law.
Morrison argues that part of the law "violates fundamental separation of powers principles inherent in the Kansas Constitution, because it effectively would give the courts a direct role in the legislative process as a super-legislative body with veto power over legislation that has not yet attained the status of operative law."
Schmidt said the Legislature had wanted Morrison to challenge the law head-on rather than just a part of it.
Schmidt said he wasn't criticizing Morrison, but added, "it might not have been the avenue I would've taken."
Ashley Anstaett, a spokeswoman for Morrison, conceded the legal motion "is a slightly different take on what the Legislature had in mind."
But she said Morrison determined that challenging "the triggering mechanism was the best way to get the law enacted as soon as possible."
If the court strikes down the section ordering Morrison to challenge the law, Morrison asks the court to order the state to enforce the rest of the law setting up the demonstration buffer zone, which, he said, he is ready to defend.
"Other than the judicial review scheme, the law is constitutional, and its purposes are both laudable and important," Morrison's petition states.
Kansas is among 38 states to have enacted laws dealing with protesting at funerals, according to the National Conference of State Legislatures.
The laws have drawn mixed results in court.
In March, a judge upheld significant portions of Ohio's law and in January a judge refused to bar Missouri from enforcing its funeral protest law. But Kentucky's funeral protest law was struck down in September.
The Kansas law states protesters can't be within 150 feet of a funeral one hour before, during or two hours after the end of the service. Violators would face up to a $1,000 fine and six months in jail.
Members of the Phelps family have said the law violates constitutional free speech protections, but that even if it is upheld they would continue picketing because they demonstrate beyond the boundaries outlined by the law.