Academic

Kansas Supreme Court Uses Separation of Powers to Nix Funeral Picketing Ban

By Calvin Massey

    When Kansas enacted its Funeral Privacy Act, it prohibited picketing, defined as "protest activities," "before or about any cemetery, church, or mortuary" at any time from an hour before a funeral to two hours after the start of the funeral.   But the provision was not effective until after a state or federal court had ruled that it was constitutionally valid, and another section of the law directed the state attorney general to file suit to obtain such a judicial declaration.  Instead, the attorney general challenged the validity of the so-called "judicial trigger" provision as a violation of the separation of powers principles of the Kansas Constitution.  The Kansas Supreme Court has agreed, holding in this opinion that the judicial trigger requires the state courts to deliver an advisory opinion, which the Kansas Supreme Court says does not constitute a case or controversy under the Kansas Constitution.  Fine.  The elephant in the room is the Westboro Baptist Church, whose upstanding members think that funerals of military personnel killed in Iraq should be picketed because America tolerates gays and lesbians.  See here.  (Warning: It's ugly.)  Assuming that the Kansas legislature repeals the judicial trigger, and makes the substance of the funeral picketing ban effective, is the ban valid?  The definition of picketing that limits that term to "protest activities" appears to be content-based, thus triggering strict scrutiny.  Is preservation of the sensibilities of grieving family members a sufficiently compelling purpose to which this ban is necessary?  I would be inclined to think so, except for the greased incline that conclusion implies:  Why not other sensibilities?  Free speech doctrine is pretty clear that offensiveness, by itself, does not justify content-based regulations.  If picketing were to be defined without reference to protest, would the ban fare better?  It would probably be valid, especially if it tracked the valid, time, place and manner restrictions that characterize abortion-picketing bans that have been held to be valid.  The next step is up to the Kansas legisalture.   

Full post as published by The Faculty Lounge on March 12, 2008 (boomark / email).