By Marc Seltzer; originally published at care2.com on October 18, 2010
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Last week the U.S. Supreme Court heard oral argument in the case of a Baptist Minister who claimed that his first amendment right to free speech entitled him to protest at the funerals of U.S. military service men and women. The case follows roughly in line with those that have accorded the greatest possible freedom to Americans who make public political statements — in this case, “God Hates You,” and “Thank God for Dead Soldiers” — however offensive.
However, unlike past cases that evidence a strong bias towards free expression in the public forum — for example, Neo Nazi marchers in Chicago, demonstrating in the streets, or the pornography of Larry Flint, published in print — the anti-homosexuality protests of the Westboro Baptist congregation disrupt private sacred rituals.
Not just in the United States, but in cultures far and wide, reaching back as far as archaeological evidence exits to document, burial rites have been among the most profound of human traditions.
Would barring protests at funerals really undermine our First Amendment freedom?
Is there a slippery slope worry? Stop someone from protesting at a funeral today, and tomorrow they will be blocked from picketing in front of a factory or speaking on the steps of city hall?
I can think of nothing so precious — save maybe the moment of birth of a child — as the solemn ritual of family and friends gathering at graveside or place of worship, to eulogize, show support, to weep and to say goodbye to loved ones. To disturb people in either of these situations — and to use the Constitution to do so, is unacceptable.
It is not the type of speech which stands out here, it is the inappropriate context. Grief is not a public forum but a private rite. To undertake the necessary process of grieving requires not just the support of community but the immersion in the experience of loss. The funeral, however constituted by cultural tradition, leads us through both a conscious and unconscious transformation.
This sacred space must be preserved.
(For more on this story, including notes on the questions asked by new Justice Elena Kagan, check out my October 9, 2010, podcast review of the legal case Snyder v. Phelps at SupremePodcast.com)
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January 12, 2011 UPDATE: Following the Arizona shootings of January 9, 2011, the Arizona legislature unanimously passed a law barring protests in the immediate vicinity of funerals.