The First Amendment And Funerals

Copyright © by Len Holman, 3/10/11


  Last week, the Supreme Court of the United States—the final arbiter of constitutionality and friend of corporations who can now take private homes to build malls—decided, in an 8-1 decision, to allow what the NY times called “hateful protests” at military funerals. The outraged howls could be heard all the way to Madison’s grave.  In Snyder v. Phelps, et al., the issue addressed was whether members of the Westboro Baptist Church of Topeka, Kansas had a constitutionally protected right to picket the funeral of Marine Lance Corporal Matthew Snyder, who died in Iraq.  This small, but very vocal, group has done this all over this country, carrying signs which state explicitly that God hates homosexuals and allows military people to die because they are agents of a decadent country, the mildest of which seems to be “Thank God for Dead Soldiers.”

  This seems to be the correct decision, given the circumstances:  The church members obeyed Maryland law to the letter, the protests were not aimed directly at the Snyder family (given the wide-ranging wackiness of their pilgrimage to cleanse America), and the Snyders could not collect damages for “intentional affliction of emotional distress” because they were, basically, out of sight.  It SEEMS correct, given the Court’s interpretation of what the First Amendment means.  To say, for example, that the First Amendment is only meant to protect “good” speech, “political” speech, speech which criticizes the government only—that this was the intent of the Framers, misses two points.  One: any time the Supreme Court says what a law means or what an amendment means in a particular circumstance, that’s activism, not original intent, since none of the justices, including Antonin Scalia, can go back to ask the founders what they “really” meant—unless he begins to channel Shirley McClain.  And second, the First Amendment not only protects us from the predations of the government, but much of the time it protects us from each other.  We are a litigious society—partly from greed, partly from a feeling it’s the only way to get relief from pain, since the governmental agencies are too busy stealing taxpayer money (as in Bell, California) or perhaps in the near future, fighting about whether a Mormon can become President of the U.S. (coming soon to a local TV station near you), or some feeling of entitlement.  In any case, the Snyders sued the Westboro people and after several circuit court judgments, The Nine heard arguments and decided that the stupid, hurtful, ignorant and vicious activities of the church and the subsequent hurt to the Snyder family were outweighed by the intent of the First Amendment. 

  There were reasoned arguments, of course.  The Nine, and Americans in general, seem to think that the “as-if” philosophy of jurisprudence actually represents real life.  The Justices act as if the amendment had no flesh and blood—just bones, and perhaps it is just as well, since no guidelines, no matter how encompassing, and no matter the force of intellects which came up with such guides, can cover every single instance which a particular principle might cover in the ensuing 200-plus years after its composition.  In this case, a distorted, ugly, and perverted Christianity has reared its ugly head and the Supremes decided that the original intent of the amendment was to protect their right to do what they do.  The Court said that, because Westboro’s speech was of public concern, that this speech cannot be proven to be directed solely at Snyder, there was no “intrusion upon seclusion” because Mr. Snyder was not a “captive audience.”  Westboro stayed well clear of the funeral; Mr. Snyder couldn’t read their signs, and the picketing didn’t interfere with the funeral.  All well and good:  “Because this Nation has chosen to protect even hurtful speech on public issues to ensure that public debate is not stifled, Westboro must be shielded from tort liability for its picketing in this case.”  That was the last line in the syllabus of the case.  Sounds nice, but there are some problems with this decision.

  The Court insisted that the content of protected speech be on “matters of public concern, were not provably false, and were expressed through hyperbolic rhetoric.”  Well, the “not provably false” part was a nice touch.  No one can ask God whether the church people are right. But “matters of public concern?” The Court admits that this requirement has not been well-defined, but said that the church’s message related to the moral and political life of the U.S. and its people, the fate of the nation (no, really), homosexuality in the military , the Catholic clergy, and whether Twinkies were biodegradable (Ok, I made that last one up).  So these are matters of import…well, yes, but isn’t context important?  Do a half-dozen crazies with hand-printed signs count as contributing to the public discourse?  Shouldn’t there be a rule that says something like:  “If people say something really hurtful, something that wounds parents, no matter if the parents don’t see the message until later, the aforementioned nutcases should be forced to live in West Hollywood or the Castro district in San Francisco and watch Charlton Heston as Moses on HBO all day?”  As painful as the messages on those signs were, as much hurt and anger as the Snyder family suffered, the answer has to be no. As much as we might question the Silent Thomas, the loquacious Scalia, the self-important Alito (who did write the only dissent), question the very ideology of this—or any other—court, the answer is still no.  Madison’s remark that we need government because we are not angels is an apt one, and a pragmatic one, based on our history as a species.  Are we led by philosopher-kings?  Will we follow Plato’s ideas of what constitutes an ideal state (in which case this piece wouldn’t make it off my computer screen)?  Or will we, as a nation, reasonably, calmly, rationally, decode the many previous decisions made on this clause of the First Amendment, and try to make room for all the permutations which the constitution never explicitly mentions?  Absent a time machine, original intent is no help in these cases. Some line has to be drawn somewhere, instead of drawing a gun.  The Supreme Court did what it does and the Snyders will have to live with the decision. As for the benighted Westboro Baptist Church members, they are certain of their heavenly reward.  Let’s hope—just for this one moment—that there is a just and merciful God up there somewhere, and let’s further hope we all get to see the faces of the church members when they get told, at the Pearly Gates, to get on the “down” elevator.


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