Archive for Wednesday, March 12, 2008

Court rejects funeral picketing law

March 12, 2008


Supreme Court says funeral picketing law is unconstitutional

In a ruling released today, the Kansas Supreme Court unanimously said the so-called trigger provision of the 2007 law invalidated the entire statute. Enlarge video

— If Kansas is going to restrict when and where people can picket funerals, legislators are going to have to enact a new law because of a Kansas Supreme Court ruling Tuesday.

A unanimous court ruled that a section of a 2007 funeral picketing law regulating funeral protesters can't be enforced because the statute's so-called judicial trigger is unconstitutional. The legislation was written not to take effect until it was upheld by a state or federal court.

The court left standing a section of the law allowing families to sue if they feel protesters defamed the dead, an exception to the general rule of law that one cannot libel or slander the dead.

The court said it released the opinion now rather than the normal hand-down day of March 28 to give legislators time to address the issue. The legislation was in response to the Rev. Fred Phelps and his followers protesting at funerals of soldiers killed in combat.

The law says protesters can't be within 150 feet of a funeral one hour before, during or two hours after a service ends. It also makes it unlawful to obstruct any public street or sidewalk.

The federal government and at least 37 states have enacted such laws in response to Phelps and his church.

In Kansas, legislators added the judicial trigger because legislators feared Phelps would file a lawsuit, get the law struck down and collect damages from the state.


Ragingbear 9 years, 7 months ago

I really look forward to the day when I get to picket a Phelps funeral.

mom_of_three 9 years, 7 months ago

The Phelps' target whoever will garner the most attention, such as the firefighter, Bryan Johnson, in Wichita. Thankfully, they were kept away from the family, because my brother-in-law would have kicked some arse.
They may have a right to picket and speak their mind, but we have a right to be protected from them.

gr 9 years, 7 months ago

"allowing families to sue if they feel protesters defamed the dead, an exception to the general rule of law that one cannot libel or slander the dead."

Wow! The dead are "protected" if someone "feels" the dead are "defamed".

WHY 9 years, 7 months ago

Bear-- good post. But maybe they would get even more attention. My guess is they will be protesting their own funerals. These scum will do anything to get their idiotic point out. When you wrestle with pigs you both get dirty but the pig likes it.

mom_of_three 9 years, 7 months ago

the comment Phelps-Roper made in the Wichita paper, about the politicians trying to ride the Phelps' back for publicity is hilarious. Isn't that what the Phelps' are doing- picketing funerals, riding the backs of the dead to promote their agenda and to garner attention? Hello pot, meet kettle.

akt2 9 years, 7 months ago

Theirs will be a fiery end. Possibly a plane crash, or a bus wreck, or an out of control vehicle that plows thru their picket line. But ultimately, hell.

BrianR 9 years, 7 months ago

The Phelpses should be "dealt with" and forgotten. Take that any way you want.

jumpin_catfish 9 years, 7 months ago

We want to protect the dead from defamement but the unborn are on their own I guess. Dead = no change for the future and unborn = well, I think you all get it.

The dead can't be defamed their dead!

notajayhawk 9 years, 7 months ago

Ragingbear (Anonymous) says:

"I really look forward to the day when I get to picket a Phelps funeral."

I just hope they bury him with a picket sign standing up through the coffin lid - with a piece of wood passing through what serves for his heart.

hopper 9 years, 7 months ago

About time and i do agree that they should just deal with him and this should all be forgotten.

WHY 9 years, 7 months ago

God loves Gays!!!!!! Gays go to heaven!!!!! God bless this Gay America!!!!

If this story is going to get the phelps' more attention we might as well spread some good will.

gr 9 years, 7 months ago

"Gays go to heaven"

Your opinion, or do you have support from the Bible?

notajayhawk 9 years, 7 months ago

I'm trying to understand this decision.

The court ruled that it was unconstitutional for the law not to go into effect until a court ruled on it by rendering a court decision that the law can not go into effect?

WHY 9 years, 7 months ago

Gr-- I couldn't care less what the bible says so yes it is my oppinion.

geniusmannumber1 9 years, 7 months ago

notajayhawk-- Here's a brief synopsis (certain to be at least 90% accurate, although I've only read through the decision once--it's long and I'm "working"); also, to all you scholars out there, I'm aware that I'm generalizing in many places:

One of the hallmarks of the American judicial system is that courts don't render advisory opinions, but need an actual case or controversy--that is, people that have already been adversely affected by a statute (or court decision, other law, etc.) that is actually in effect. This is because for the judicial branch to preemptively say "this law is unconstitutional" would be akin to a veto, which is constitutionally the prerogative of the executive branch (both federally and in Kansas).

The legislature enacted the law, but knew there would be free speech questions. Hoping to circumvent the length of time it would take to actually prosecute, appeal, etc. an actual person (and most likely to avoid giving the Phelps's the media circus they'd create if they were the ones prosecuted), attached a provision to the law directing the AG to file a lawsuit testing the constitutionality of the new law, and stating that the new law wouldn't even go into effect until the courts had decided.

We can see the problem here--essentially, the legislature is ordering the AG file a lawsuit seeking an advisory opinion, which the courts have no power to do. Now, the legislature is (generally) within its powers to order the AG to file lawsuits. However, as an officer of the court, the AG has an ethical duty not to file a lawsuit he knows the courts have no jurisdiction to hear, isn't meritorious, etc. Hence, a conflict.

The general issue has already come up before, and it's the law in Kansas that the legislature cannot intrude on the AG's ethical duties as an officer of the court and force him to file a suit he believes has no merit.

So basically, the AG had to file suit saying that he believed that the legislature was forcing him to file a hopeless suit seeking an advisory opinion, and that he felt the legislature had no authority to do so.

Essentially, the court ruled that 1) the AG was correct and 2) the part of the law calling for it not to take effect until the courts had decided on its constitutionality was itself a violation of separation of powers and unconstitutional. Because taking that section out completely would mean the law goes into effect no matter what--which was manifestly not the intention of the legislature--and would have the effect of broadening the scope of the statute, which the courts cannot do, the law can't go into effect.

So the legislature can now 1) reenact it without the triggering clause, prosecute, appeal, etc. in the normal ways, or 2) get really creative. The bottom line is that the courts have made no ruling about the constitutionality of the main thrust of the statute vis a vis First Amendment rights, etc.

Bruce Liddel 9 years, 7 months ago

2000 years after the fact, I think none of us know enough Greek and Latin to really know what the Bible really intended to say about homosexuality. But that is merely a red herring.

What really bothers me is that the Kansas legislature, which is historically so proud of themselves for outlawing victim-less behaviors and picking political fights with whomever, is suddenly afraid to go on record against the most vile and hateful example of human depravity. Therefore, the legislature put an unconstitutional trigger in the law, because the Westboro Baptist Church might sue and have the law struck down?

Excuse me, didn't the court just strike down the law anyway? So, are we supposed to hold the legislature in higher esteem because the Westboro Baptist Church didn't file the suit? Sorry, I don't see it.

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