Morrison files suit over picketing law’s constitutionality
Challenge was planned by legislators as a test case to obtain Kansas Supreme Court ruling
These 38 states have enacted laws on funeral protests:
Alabama, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wisconsin, Wyoming
Topeka ? As planned by the Legislature, Attorney General Paul Morrison filed a lawsuit asking the Kansas Supreme Court to rule on whether a funeral picketing law enacted last month is constitutional.
The lawsuit filed Thursday amounts to a test case to obtain a ruling from the state’s highest court. The law was crafted not to take effect unless its constitutionality was upheld either by the Supreme Court or a federal court.
“This lawsuit is the first step toward giving Kansas a funeral picketing statute police officers can enforce,” Morrison said. “We wholeheartedly believe that the underlying provisions of the funeral picketing law are constitutional and this suit is the way we get the law to take effect.”
The Supreme Court doesn’t rule on whether a law is constitutional unless someone brings a legal challenge, which Morrison did to get the case before the justices.
“As I promised during the session, we will do everything in our power to protect grieving families from disrespectful intrusions during their time of grief and mourning,” Morrison said.
The law says 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.
The law also makes it unlawful to obstruct any public street or sidewalk and allows family members to sue if they feel protesters defamed the deceased – an exception to the general rule of law that one cannot libel or slander the dead.
The next step for the court is to consider Morrison’s request for an expedited hearing. He asked the court for a ruling by July 1, and failing that, to hear the case in early September. The court doesn’t sit in August.
The law was prompted by the Rev. Fred Phelps and his Westboro Baptist Church followers who protest at funerals, many of them for soldiers killed while on duty. They say the deaths are God’s punishment for the nation harboring homosexuals and their protests are a form of religious expression protected by the Constitution.
“We know this is wrong. It violates the Constitution. The only question is whether the court will let them get away with it,” said Shirley Phelps-Roper, the church’s attorney and daughter of Fred Phelps.
She said if the law is upheld, it won’t stop the protests because the church pickets beyond the boundaries set by the law. She said church members have protested at 281 military funerals in 43 states since June 15, 2005.
“These people are so filled with hatred that they are blinded by it. They hate us because they hate their God,” Phelps-Roper said. “All this shucking and jiving to find a way to make it go away, they have brought the wrath of God on their heads.”
When the Legislature enacted the bill, members included the provision that it wouldn’t take effect until after it had been declared constitutional to lessen concerns that Phelps and his followers would file a legal challenge, win and collect attorney fees from the state.
Senate Majority Leader Derek Schmidt, R-Independence, came up with the idea of getting a court ruling.
“The whole purpose is to be proactive. Everybody knows there are First Amendment issues in regulating any protest activity,” Schmidt said. “When the lawsuit is over, we hope we have a definitive statement on the funeral privacy statute. That is what we need. Bringing a pre-emptive lawsuit is the way to do it.”
Kansas is among 38 states to have enacted laws dealing with protesting at funerals, according to the National Conference of State Legislatures. Such laws have been challenged in federal courts in at least three states.
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.