By andy Marso
WASHINGTON – Maryland lawmakers introduced three state and federal bills in the past five weeks to strengthen restrictions on picketing funerals.
The measures are meant to protect families from the distress that led Albert Snyder to file a lawsuit against the anti-gay Westboro Baptist Church after it picketed his son’s March 2006 military funeral in Westminster.
The bill passed by the Maryland General Assembly and those introduced by U.S. Rep. Dutch Ruppersberger, D-Baltimore, and Sen. Ben Cardin, D-Md., would increase the “quiet time” before and after funerals and increase the distance between picketers and funeral events.
Westboro attorney Margie Phelps, who defended the church against Snyder’s lawsuit in the Supreme Court, said she’s looking forward to challenging the laws.
“It makes us absolutely thrilled that all these legislative bodies are going right off the chain with overreaching laws,” Phelps said. “Because it brings, again, the attention of the whole world to our message.”
Westboro is a small church in Topeka, Kan., that pickets military funerals because its members say soldiers’ deaths are God’s vengeance for the United States’ tolerance of homosexuality.
Snyder’s lawsuit against them was denied 8-1, with Justice Samuel Alito dissenting. The majority ruled that Westboro’s speech is protected under the First Amendment because it is of public concern and the picketers, who were about 1,000 feet away, did not disrupt the funeral.
Chief Justice John Roberts’ opinion made it clear the justices were only ruling on the merits of the suit, not on the constitutionality of laws that restrict funeral picketing.
“To the extent these laws are content neutral, they raise very different questions from the tort verdict at issue in this case,” Roberts wrote. “Maryland’s law, however, was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional.”
Robert Percival, who teaches constitutional law at the University of Maryland, said Phelps would have an uphill battle.
“The (Supreme) Court’s been fairly clear…that reasonable time, place and manner restrictions on speech are constitutional,” Percival said. “It’s just that you cannot hold someone liable for the speech itself.”
The Maryland law Roberts referred to required picketers to stay at least 100 feet away from a funeral or funeral procession. The Maryland legislature unanimously passed a bill on April 11 to increase the distance to 500 feet. Shaun Adamec, spokesman for Gov. Martin O’Malley, said O’Malley will sign it into law.
Percival said it will probably still stand up in court.
“They couldn’t make the buffer so large that it would be impossible for anyone to even notice that there was any type of speech going on,” Percival said. “But it seems to me that a 500-foot restriction would not have any problem constitutionally at all.”
The Maryland bill applies to all funerals. Ruppersberger and Cardin have introduced federal bills specific to military funerals.
Cardin’s bill would increase the quiet time before and after a military funeral from 60 minutes to 120 minutes, and increase “buffer zones” around the funeral from 150 feet to 300 feet and around the funeral procession from 300 feet to 500 feet.
Cardin said the bill had been “carefully drafted” to comply with the Supreme Court.
“The issue here is the families that are entitled to have the dignity and the privacy of a funeral,” Cardin said. “…It has nothing to do with the individual group, or the publicity they’re seeking or what publicity they’ll get from these bills being filed.”
Ruppersberger’s bill would increase military funeral quiet time to five hours and push the buffer zone to 2,500 feet.
“Wow,” Percival said when told of the bill’s parameters. “I think that might have more problems….The court has to draw a line someplace. Whether that would go too far would be up to the courts to sort out.”
Phelps, who is already challenging anti-picketing laws in Missouri and Nebraska, said she will definitely challenge Ruppersberger’s bill if it becomes law.
“My reaction is, ‘Bring it on,'” Ruppersberger said. “I have researched the bill, I’m an attorney and like most Americans I’m very deeply offended by the protests being staged at these military funerals, including the one for a Maryland Marine that led to the recent court case.”
Win or lose, Westboro’s profile rises and its media coverage increases. Members of the church were outside Fort Meade near Severn on Thursday, picketing Meade High School.
“After awhile you almost start prioritizing where you go just by the level of publicity that’s already occurred,” Margie Phelps said. “And the more they pass these laws, the more that phenomenon gets bigger.”