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Craig Parshall, General Counsel


Obituary for Religious Speech
in Funeral Case?

July 21, 2010

In law school we often heard the old maxim, hard facts make bad law. It would be difficult to envision a more dramatic example of this than the Supreme Court appeal of Snyder v. Phelps. It is a case fraught with “hard facts” that holds the potential for cutting a swath through rights of religious expression (that’s the “bad law” part). Consider these hard facts in the background: Outrageous “preacher” Fred Phelps, who is notorious for his repulsive, theologically-mangled public messages against homosexuality, was joined by his tiny band of followers outside of a Catholic church. They led a protest picket; while inside a funeral for fallen Marine Lance Cpl. Matthew Snyder was being conducted. Phelps was using the occasion to make his nonsensical case, suggesting that the death of American soldiers who defend our nation is somehow connected to God’s judgment against homosexuality. The Marine’s surviving family sued for damages under the theory of a state civil tort of “intentional causing of emotional distress.” They won at trial but the Fourth Circuit Court of Appeals reversed that decision, holding that the First Amendment protects even the most outrageous religious rants. It is important to note that Phelps, et al, were at all times complying with local ordinances and the commands of the police on the site, staying some 1000 feet away from the funeral. Now the parties are filing their written arguments in the U.S. Supreme Court, which has agreed to hear the case, and a parade of public interest and media groups is filing their amicus curiae (“friend of the court”) briefs. As much as the facts are sympathetic to our courageous military troops and their families, the legal arguments being made on their behalf are hair-raising from a First Amendment standpoint.

For instance, the Veterans of Foreign Wars (VFW) and the State of Kansas have suggested to the Supreme Court that religious speech can be punished whenever it is deemed harassing, or where it lacks sufficient “redeeming social importance.” What is disturbing about that approach is that Elena Kagan, whose confirmation as our next Supreme Court justice will be voted on in August, has shown herself to be sympathetic to that kind of legal theory. Other liberal justices might join her on that point if she is confirmed. The bottom line is that evangelical Christianity would be particularly vulnerable if this new legal rule is adopted. We are already being painted with the same brush as the Phelps of the world. Consider the comments in the brief of a group of 21 media organizations – who have actually come down on the correct side of freedom of religious speech in this case, by the way. The media coalition takes aim at the late Jerry Falwell and at CBN’s Pat Robertson, arguing that their statements decrying American’s moral departure from biblical values and their criticism of liberal groups like People for the American Way and the ACLU are actually in the same category as Phelps’ inane ramblings. The brief of the media groups goes on to lump William Jennings Bryan (of the notorious “Scopes” trial) into the same bushel basket of supposedly troublesome fundamentalists. But who is revealed as the real hero in this brief of mainstream journalism? None other than H.L. Mencken, the bitter critic of both Bryan and biblical Christianity. He is heralded as the kind of prophet of the press that deserves legal protection. The written arguments of these media folk actually cite Mencken’s mean spirited epithet: “evangelical Christianity, as everyone knows, is founded on hate.”

To be sure, that brief also takes aim at other religious speakers in addition to Evangelicals. But as a whole, the legal argument of this large section of American journalism clearly and most incorrectly tries to count Fred Phelps as a member of the Evangelical camp. This is just one more reason why I hope and pray that the Supreme Court gets this one right. For if it doesn’t, the next time it won’t be a fringe extremist like Fred Phelps in the dock. It will be us.