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Response from Alan J. Reinach

We have known for more than twenty years that the free exercise of religion has been relegated to the dustbin of history as a third rate first amendment freedom. Now the Supreme Court has taught us that precious little remains sacred in this land of ours, certainly not funerals.

In this latest exercise in insanity from our High Court, the religious nature of the funeral doesn't even deserve recognition or mention. We also learn that nut jobs deserve more consideration than religious services.

By nut jobs, I mean Fred Phelps and members of his Westboro Baptist Church, who traveled from Topeka, Kansas to Maryland in order to demonstrate outside the funeral of Marine Lance Corporal Matthew Snyder, who was killed in the line of duty in Iraq. They set up their picket signs, in accordance with local law, a thousand feet away from the church where the funeral was conducted, and displayed their signs: "Thank God for Dead Soldiers," "Fags Doom Nations," "Americais Doomed," "Priests Rape Boys," and "You're Going to Hell," among other signs.

Aftert rial, a jury awarded the family of Matthew Snyder millions of dollars in damages, under legal theories such as intentional infliction of emotional distress. This is a very difficult claim to prove, requiring evidence of truly outrageous conduct, beyond the bounds of civilized society, and intended to inflict serious emotional harm. The jury verdict was reduced by the trial judge, and then overturned, first on appeal, and finally by the Supreme Court, ruling that the defendants' activities were protected free speech.

AsJ ustice Alito pointed out in dissent, on appeal, Phelps and his clan did not even challenge the sufficiency of the evidence. Moreover, the Court's opinion ignored the personal nature of the attacks. Not only did the signs falsely imply that Mathew Snyder was gay, Phelps followed up with a vicious personal attack on the parents in an internet posting. The Court did not even discuss the internet posting, providing fuel to the unrestrained who wish to engage inverbal abuse on the World Wide Web.

Yet neither Alito's dissent, Breyer's concurrence, or the Supreme Court opinion discussed the religious nature of the funeral service that was the target of such a vicious attack. There was no consideration given to the rights of mourners to participate in a religious service without having the sanctity ofthe event desecrated by such crass and inappropriate conduct.

This case presents a classic clash of rights, but the Court didn't see it. The Courtc ould only see the Snyder's secular legal rights to sue for damages, not the sanctity of the funeral service, which was a sacred occasion conducted in a house of worship.

It's all well and good that the Court values free speech, and protects speech that is calculated to upset people. I'm all for free speech. But historically, there have been time, place, and manner restrictions on speech. These restrictions were reflected in this case only to the extent that the location of the picketers was dictated by strict local laws governing demonstrations atf unerals.

All but two states filed a brief opposing the picketers. They framed the issue this way:

May the States protect the privacy and emotional health of grieving families from the psychological terrorism of persons who target such families with hostile picketing at funerals and internet postings that include personal attacks on the families and their deceased children?

You can see the value of framing the issue. Whoever frames the issue wins the debate. Sadly, the Supreme Court ignored the wisdom of the states. But even the states did not go far enough. The real issue is whether the Free Speech clause protects those who intentionally desecrate a religious service. The answer to this question must be a resounding "No!"

If Phelps and his ilk can picket funeral services, why not church services? How would you like to see his signs "Pope in Hell" and "Priests Rape Boys" on the main street leading to one's attendance at Catholic Mass? Oh, but they may be on a public street three blocks down from the church, so they have a right to be there. Just because it is Sunday morning, half an hour before the start of Mass, so what? This is free speech! No, it's not.

I can hear some asking whether the picketing activities themselves are protected free exercise of religion. The answer is simple: no. There is an old saying that your freedom of movement ends when your fist approaches my nose. No one has the right to use religion as a shield to intentionally harm someone else.That is why the North American Religious Liberty Association motto characterizes its vigorous advocacy of religious freedom as protecting such freedom "for all peaceful people of faith."

In the final analysis, the case is a tragic reflection on the profound secularization of our society. Our culture has lost a sense of the sacred. And the sacred has lost its right to be protected. What a tragic loss!

Photo of Alan J. Reinach

Author: Alan J. Reinach

Alan J. Reinach is Executive Director of the Church State Council, the religious liberty educational and advocacy arm of the Pacific Union Conference of Seventh-day Adventists, representing five western states: Arizona, California, Hawaii, Nevada and Utah. His legal practice emphasizes First Amendment religious freedom cases, and religious accommodation cases under Title VII of the Civil Rights Act of 1964 and related state civil rights laws. Reinach is also a Seventh-day Adventist minister who speaks regularly on religious freedom topics, and is the host of a nationally syndicated weekly radio broadcast, “Freedom’s Ring.” He is the principal author and editor of Politics and Prophecy: The Battle for Religious Liberty and the Authentic Gospel, and a frequent contributor to Libertymagazine.

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