On August 6, President Obama signed into law the Honoring America’s Veterans and Camp Lejeune Families Act of 2012 (H.R. 1627, an expansive bill with two primary goals: caring for veterans and their families who were harmed by contaminated water at Camp Lejeune, North Carolina, from 1957 to 1987 and addressing veterans’ health, housing, education, benefits, and burial needs).
The bill passed overwhelmingly in both houses of Congress, with the president calling attention to the section of the act that restricts picketing military funerals. Similar restrictions are already in place at federal cemeteries such as Arlington National Cemetery, but this act prohibits “willfully and without proper authorization impeding or tending to impede the access to or egress from” a funeral site or “and willfully engaging in action that disturbs or tends to disturb the peace of the persons located” at funerals other than those in national cemeteries. Such pickets are prohibited for up to two hours before and after a funeral and within 300 feet of the entrance or exit of a funeral site and within 500 feet of the border of a funeral site.
As with the Respect for America’s Fallen Heroes Act, which was signed into law by George W. Bush in 2006, this law aims to prevent pickets by members of the Topeka, Kansas-based Westboro Baptist Church, which links military deaths to America’s tolerance of homosexuality.
According to Westboro Baptists, America tolerates homosexuality, as evidenced in Lawrence v. Texas, the 2003 Supreme Court case that overturned anti-sodomy laws. Once the United States, in defiance of God’s proclamation that homosexuality is “an abomination,” made same-sex contact legal, the nation became the enemy of God. And, as readers of the Old Testament know, a nation that is the enemy of God will find its armies destroyed.
To preach this message to the world, members of Westboro Baptist Church attend military funerals, where they hold signs that say “God is America’s Enemy” and “Your Soldier’s in Hell.” Because people at funerals are emotionally vulnerable, they are more likely to hear the words of God, as pronounced by Westboro Baptists: “We’ve turned America over to the fags/ They’re coming home in body bags.”
Westboro Baptists have already been challenged—daily, at pickets as well as in the courts—about this activity. In Snyder v. Phelps, the father of a fallen Marine, Matthew Snyder, sued for civil damages and won; initially, nearly $12 million. The case wound its way to the Supreme Court, where, in an 8-1 decision, Chief Justice Roberts wrote that the church’s message, no matter how detestable, is free speech and must be protected as such:
Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials….
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.
The Supreme Court ruled that Westboro Baptist Church is thus not liable for damages.
Many in the public were outraged by the decision. Albert Snyder, father of fallen Marine Matthew Snyder, noted after the Court’s decision, “At this point, if the courts will not step in to help military families, we need all the help we can get from our elected officials.” Lawmakers responded to such complaints by crafting legislation that would make picketing so difficult that Westboro Baptists would stop. It eventually became part of the larger omnibus veterans bill.
Less than two years after the Snyder decision, the House passed the bill unanimously, and the Senate passed it with a voice vote. President Obama signed it into law, noting its bipartisan support and calling attention to the two key issues at stake in its signing: First Amendment rights to the free exercise of religion and to free speech:
I am very pleased to be signing this bill into law. The graves of our veterans are hallowed ground. And obviously we all defend our Constitution and the First Amendment and free speech, but we also believe that when men and women die in the service of their country and are laid to rest, it should be done with the utmost honor and respect.
The news of the bill’s signing has been trumpeted by pro-military as well as pro-gay organizations. The Huffington Post called the legislation a “blow” to the church, which will be “severely limited” in its ability picket.
Not so, declared the church. Member Steve Drain said in an interview with CNN on Friday that the law is “really not going to change our plans at all.” Given that WBC pickets are often five hundred feet or more from the scene of a funeral, the bill is likely to have minimal impact on the church’s strategy. Already, many states have laws in effect that limit funeral picketers from coming.
Given that the law seems to run counter to the decision in Snyder, a legal challenge is possible. Said Drain about this possibility: “We’re keeping our options open.” Since the bill is written as a direct attack on the strategies of WBC—strategies already found to be protected—a challenge is likely to be successful.
The problems include the large buffer zone. Five hundred feet is a significantly large buffer, one that could put the targeted audience out of reach and that the court may not find necessary to accomplish the goal of having a funeral without disruption. And while most states now have some restrictions on funeral protests, including buffer zones of up to 300 feet, the constitutionality of larger buffer zones is doubtful. Similarly, many states limit the times when such pickets can occur, but a two-hour time buffer at the start and end of a funeral may simply be too large. (The Safe Haven for Heros [sic] Act of 2011, which seeks to prohibit pickets for five hours before and after a funeral and within 2500 feet, is surely too expansive.)
A greater concern, though, is the term “disruption” itself, which is not clearly defined in the law. Westboro Baptists themselves have noted that the law will prevent counter-protesters, including the human walls, zombies, and motorcycle brigades that have cropped us as grassroots responses to the church’s pickets.
The enforcement of a law prohibiting “disruptions” without regard to content seems impossible—and, really, that isn’t the law’s goal. The goal is to silence Westboro Baptists, and that targeted effort is what may doom the law. Still, warns legal scholar Christina Wells of the University of Missouri-Columbia, who has followed the development of the legislation extensively, “This Court is a bit unpredictable… and cases involving offensive speech almost always involve closely divided opinions.”
Other questions remain, though. If this law is in conflict with a recently-decided Supreme Court case, why did Congress forward it? If the courts have not upheld buffer zones of more than 300 feet, why did Congress push for 500 feet? If buffer zones of 300 feet have been deemed to be effective in protecting the rights of mourners, why was any new legislation needed?
And why servicemen and -women but not the victims of mass shootings, mining disasters, bridge collapses, or grain elevator explosions—all of whom have been threatened with funeral pickets? And why not those who have died of AIDS-related illnesses, the original targets of WBC pickets? Why are some deaths worthy of dignity and some not?
In a church-produced newscast, Steve Drain calls the new law an example of “futile, feeble efforts to silence God’s prophets.” In signing this law, President Obama, a constitutional scholar himself, may have signed a popular bill—but one that, as Drain predicts, is too feeble to stand the test of judicial scrutiny. It does, however, reveal Congress’ love of self-congratulatory legislation.