The right to assemble peaceably to express ones views on matters of public interest is given the highest degree of legal protection under the First Amendment.
The sacrifice of American soldiers abroad is one of the most controversial of government activities and one on which all citizens have a right, even a duty, to let their feelings be made known in the interests of supporting the war or halting the killing. Feelings run strong and both sides believe they are supporting the troops when advocating sending more or bringing them home, regardless what the troops think. This is an inevitable part of the democratic process and is to be welcomed, not condemned.
That's the theory.
In practice, there's a group opposed to at least some aspect of the war in Iraq. Calling themselves the Patriot Guard, because they think they are protecting American values in a patriotic way, as we all do when we speak out for or against this war or that, the Phelps family believes that when American soldiers die it is God's way of letting America know that it is wrong, a sin, to tolerate homosexuality legally as we do.
In order to get their message across to greatest effect, the Patriot Guard stages protest demonstrations against homosexuality and the war in Iraq at the funerals of American soldiers after their remains are brought home for their families to bury them in cemeteries all over the United States.
This upsets grieving family members and friends enormously, to have their effort to provide a respectful mourning ceremony disrupted by visions of protesting demonstrators lining the route from church or burial site.
Politicians and lawmakers, not necessarily mutually exclusive groups, have wrestled with the language of bills designed to ban free-speech demonstrations from occurring near the route of funeral processions and gatherings connected to military funeral exercises. Their problem is to protect the funeral while not burying the First Amendment while they're at it.
Can you think of a way to accomplish both goals at the same time? That is to allow peaceful public demonstrations while at the same time protecting the sensibilities of grieving family members, friends, and members of the public attending mourning services for fallen soldiers cut down in the prime of life? Do let me know if you have a satisfactory solution, as I'm not sure there is one. I was informed of one in which counter demonstrators consisting of burly looking motorcycle riders festooned with American flags rode before and after the funeral procession to let antiwar demonstrators know that their presence was not welcome, but that's not the sort of statutory solution we have in mind, I don't think, as effective as it may be.
Remember that we don't allow police to harass demonstrators, any more, because listeners or viewers may become upset and violent. We used to allow police to arrest the speaker of radical or unpleasant thoughts in order to prevent violent reactions from the crowd, but that has been recognized as a form of illegal "heckler's veto," in which the content, or form, of speech is banned by police because of a claimed reaction from a crowd which doesn't like what it sees and hears. In a democracy, the free political expression guaranty assures us all that much of what we see and hear we may not like, whether we are happy about particular applications or not.
Good police work today requires local and other police authorities to become aware of planned demonstrations so that they can be properly policed. We don't want people attaching two-by-four lumber to placards and turn them into deadly weapons. We require permits to be taken out in advance in some cases in order to allow some semblance of peaceful control. When the president visits a city to appear at a civic function or political rally or dinner, we expect protesters to appear yelling and waving banners and placards in order to appear on the television news with the president. We expect counter-demonstrators to appear to support the president and cancel the effect of the antiwar demonstrators.
This has been the way it's been in America since we began getting ourselves into unpopular wars beginning, say, with Vietnam. Demonstrating wasn't such a big problem during WWII and Korea, although it was with WWI, when Americans were sent to prison for twenty years for exercising their First Amendment rights by speaking, pamphleting, leafleting, etc., against the war, the draft, etc. Our modern American First Amendment rights are given birth, in fact, by the perceived, finally, injustice of prosecuting and jailing these protesters of American war and policy. Today we deem it more patriotic than not to express views against wrongheaded policies of the president whenever we so perceive them.
An interesting new wrinkle, new in the sense that this is the first time I've seen an issue like this arise, has developed in connection with the attempt to draft a statute that prohibits demonstrating at military funerals. Anticipating a challenge to the constitutionality of their draftsmanship, the legislators have enacted, as part of their bill, a provision that makes the entire bill inoperative unless and until it has been declared constitutional in their state.
Anything wrong with making a legislative act conditional on its being ruled constitutional? Isn't this what we want, constitutional laws?
Not so fast.
How is a case supposed to arise concerning a law that by its own provisions cannot be enforced unless and until a case has been brought that succeeds in establishing its constitutionality? Isn't this a bit of Catch-22? We'll give you this law, but you can't rely on it until it has been declared constitutional by a court, but you can't get it declared constitutional unless you bring a case. But you can't bring a case because... We seem to be going around in circles at this point.
You see we have this rule, at least for the U.S. Supreme court, that in order for it to accept a case, there must be a case in which someone has suffered an injury for which the court, any court, has the power to provide a remedy to the person injured. The injured person is said to have standing to complain. Without standing, no case. Without a case, there's no vehicle on which to ride the statute or some principle related to it into the Supreme, or other, Court.
Beyond the Catch-22 aspect, the Kansas Supreme Court, which considered such a law that required court review to trigger a statute's applicability, has held that the legislature should not shift to the court the duty to make policy. Legislatures have lawyers to advise on First Amendment issues and have a duty to try to pass laws that pass constitutional muster. The Kansas Supreme Court has told the Kansas Legislature to do its duty, which is to enact the best law it can, then leave it to the inevitable litigants to develop the cases that will provide the context for any challenge down the road. On this ground the Kansas Supreme Court declared the Kansas military funeral law banning certain kinds of demonstrations unconstitutional.
This seems a new wrinkle to me, as I've said, as I can't recall a case quite like it where the operability of a law was made dependent on prior court approval. I have seen statutes declaring that they are enacted to change the effect of court rulings, but that's not the same thing. There's the case from Colorado in which the legislature, perhaps it was an amendment, which purported to prohibit any legislature in the future from enacting laws that favored gays, which the U.S. Supreme Court held unconstitutional. This somehow seems closest in effect to the Kansas statute.
The opinion of the Kansas Supreme Court appears below, after the news article: