Funeral protest ban Okayed

03/11/2006

133-0 vote likely to see court challenge

BY PATRICK SWEENEY
Pioneer Press

In a rare display of unanimity, the Minnesota House voted 133-0 Thursday to outlaw protests or picketing within 1,000 feet of funerals, burials and funeral possessions.

Later, a Senate committee approved a similar ban on any intentional disruption of a funeral, but set no distance that protesters must keep or face arrest.

Both bills were a response to anti-gay protests across the country by the congregation of a tiny church in Topeka, Kan., founded by Fred Waldron Phelps Sr. In a string of recent demonstrations at military funerals, including two in Minnesota, members of the Westboro Baptist Church have carried signs asserting that American war deaths in Iraq are God’s way of punishing this country for embracing a culture that accepts homosexuality.

As they adopted the protest ban Thursday, House members were acutely aware that the ban likely is to be challenged in court as an unconstitutional infringement on the Kansas protesters’ free speech rights.

The bill passed in the House and the one being considered in the Senate do not mention Phelps or his church. Nor do the bills distinguish between military and civilian funerals.

“I am asking my colleagues to join me in a walk through the minefield of placing what may appear to be a regulation on our constitutional right of free speech,” said Rep. Steve Smith, R-Mound, the sponsor of the House legislation. “And I am asking us to do that on behalf of the families of soldiers who fought and died in real minefields.”

As Smith spoke, Merrilee Carlson of Hastings, the mother of Army Sgt. Mike Carlson who died in January 2005 in Iraq, looked on from the House gallery. The Phelps group did not protest at her son’s funeral, but Carlson said the church has no right to interfere with families grieving for their sons and daughters.

“At the time of the funeral, the rights of the mourners to be able to honor their loved ones outweigh the rights of others to abuse their freedoms and be hurtful,” she said in an interview before the House voted.

Before the Phelps group began picketing military funerals, the group often protested at funerals of AIDS victims.
Smith’s bill included a provision barring picketing at the homes of family members of people who have died. Before the House voted, Rep. Karen Clark, DFL-Minneapolis, who is gay, won an assurance from Smith that he intended the bill’s reference to families to include gay partners. “It is my intention that the wording of the bill exclude no one,” Smith said.

Several hours after the House passed the 1,000-foot protest ban, the head of the Minnesota chapter of the American Civil Liberties Union warned senators that even a 300-foot ban on funeral protests probably would fail to survive a court challenge.

Chuck Samuelson urged the Senate Crime Prevention Committee to instead rely on Minnesota’s existing disorderly conduct statute to regulate funeral protests. That law outlaws any effort to disturb an assembly or meeting, and Samuelson suggested lawmakers could add funerals to the law.

He argued that protest bans, like the one the House passed, could end up enriching Phelps by allowing him to challenge the bans in federal court and collect court-ordered attorney’s fees.

“Speech that is cruel, distasteful and upsetting is still protected by the First Amendment. And by leaving the state on precarious legal footing, what this bill is doing is encouraging Phelps to sue and have the state help fund his operations,” Samuelson said.

The bill eventually approved by the Crime Prevention Committee dropped a proposed 300-foot limit on protests, but retained language making it illegal to intentionally disrupt a funeral by picketing or protesting within an hour before or after a service.

In recent days, the Phelps group has failed to show up for several protests it previously had announced at military funerals, including one Monday in Superior, Wis. A Wisconsin statute restricting protests at funerals went into effect March 1.

Shirley Phelps-Roper, a daughter of the church founder and an attorney for the church, said Thursday that leaders of the group were concerned that child-protection workers would take church members’ children if the members were arrested. But she said the church would not abandon its demonstrations at military funerals.

“We can go and stand with our picket signs and not violate their cotton-picking laws,” Phelps-Roper said.