WASHINGTON — California and other states seeking to curtail funeral protests are following a politically popular but legally disputable path.
Supreme Court, here they come.
This week, California lawmakers joined their counterparts in Arizona, Illinois and other states in passing tougher new restrictions on protests at funerals. In particular, legislators hope to deter members of a small, aggressively loud Kansas church who travel long distances to picket military funerals, where they often proclaim that dead soldiers are God's punishment for America's sins.
"I think this will survive constitutional challenge," California Democratic state Sen. Ted Lieu said of his bill Friday, "but that's not to say there aren't legal issues raised."
Politically, the funeral protest bills backed by veterans groups are unassailable. The California Assembly approved the new legislation by a 75-0 margin. Arizona's new protest restrictions likewise won unanimous approval in January.
Judges, however, will have the final say on whether legislation muffling speech near funerals can survive First Amendment challenges. A review of relevant cases suggests the new restrictions may reach farther than courts have been willing to go.
"There will be a challenge to the California legislation," Topeka, Kan.-based attorney Margie Phelps promised Friday. "We're preparing the suit now."
A federal appeals court already is considering separate challenges to funeral protest restrictions imposed in Missouri and Nebraska. Phelps said a ruling by the 8th U.S. Circuit Court of Appeals could come "any day." Potentially, she added, the Supreme Court could take up the controversy "within a year."
Phelps represents the Westboro Baptist Church of Topeka, whose members primarily come from the extended Phelps family. They've traveled across the country to picket military funerals, decrying America's sins and deploying signs with graphic messages such as "God Hates Fags" and "Thank God for Dead Soldiers."
Within the past week, Phelps noted, church members demonstrated at funerals held for Navy SEAL commandos recently killed in Afghanistan.
A similar protest outside the 2006 funeral of Matthew Snyder, a 20-year-old Marine lance corporal who died in Iraq, led to a Supreme Court decision upholding the rights of funeral protestors. The court's March 2011 decision struck down a jury's order that the church pay millions of dollars to Snyder's emotionally distressed father.
"Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible," wrote Chief Justice John Roberts, but "as a nation we have chosen ... to protect even hurtful speech on public issues to ensure that we do not stifle public debate."
But the court's 8-1 decision avoided taking a position on state laws and noted that states could potentially impose some "content neutral" restrictions on the "time, place or manner" of funeral protests. Lawmakers consider this a green light.
The California bill, for instance, establishes a 1,000-foot buffer zone in which protests would be banned an hour before and an hour after a funeral service. Arizona imposed a no-protest zone extending 300 feet, while Illinois likewise extended a no-protest zone to 300 feet around military funerals.
"The overwhelming majority of states have adopted such restrictions," Lieu said.
Congress tilts the same way.
Rep. Dennis Cardoza, a Democrat from Merced, Calif., and some 30 other House members support the elaborately dubbed Sanctity of Eternal Rest for Veterans Act of 2011. It would establish a 500-foot buffer zone around military and veterans' funerals. Thirty-five senators back similar legislation.
A more expansive 2,500-foot funeral buffer zone would arise under the Safe Haven for Heroes Act, backed by nine House members including Democratic Rep. Frederica Wilson and Republican Rep. Jeff Miller, both of Florida.
"These bills are unconstitutional from their inception," Phelps said.
The size of the no-protest zones could pose one problem.
In 1994, the Supreme Court upheld a 36-foot buffer zone shielding women entering Florida abortion clinics. The court in 1988 likewise upheld a Wisconsin city's law banning picketers "before or about" a private home.
But the high court indicated there are limits to how far a no-protest buffer can stretch. In the 1994 case, justices struck down a broader 300-foot buffer zone around abortion clinics.
"The 300-foot zone would ban general marching through residential neighborhoods, or even walking a route in front of an entire block of houses," then-Chief Justice William Rehnquist noted, adding there was not "sufficient justification for this broad a ban on picketing."
Another key question will be whether the laws are neutral. The California law, for instance, specifies that the 1,000-foot buffer covers "protest activities." Phelps said this unfairly tilts the scale against her church's viewpoint; Lieu countered that the no-picketing law would be evenly applied.
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