In ‘God Hates Fags’ Case, Free Speech Trumps Free Exercise

The Supreme Court has ruled in favor of the right of Westboro Baptist Church to conduct its ugly protests at funerals in a case that has produced mixed emotions among many. Only Justice Alito dissented.

Months ago I noted the role of convoluted First Amendment Free Exercise claims involved in this case. And then in January, RD contributor Bruce Ledewitz elaborated on the point, explaining wonderfully how this came to be. [Journalist Robert Marus wrote a response piece titled The Quietly Crumbling Wall of Separation — ed]

One might have expected this case to revolve around the Phelps’ claim that “God Hates Fags” is a protected religious expression. In fact, it was the father of slain Lance Corporal Matthew Snyder who argued that the offensive presence of Westboro Baptist at his son’s funeral violated his freedom to exercise his religion (as well as his privacy rights). The Phelps case relied on a free speech claim instead of freedom of religion, and they won.

So as the Supreme Court sees the right to freely practice one’s religion as “constitutionally irrelevant,” religion has been reduced in popular rhetoric to the right of the dominant religion to be free of any challenges to its dominance: wishing someone “happy holidays” in thought to violate the religious freedom of Christians; teaching evolution, likewise, violates the religious freedom of creationists.

We might abhor what the Phelpses do, and we might cheer this decision as a protection of free speech, but we shouldn’t miss the point that it is also part of the continued erosion of the First Amendment Free Exercise clause.

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