Topeka, USA - As planned by the Legislature, Attorney General Paul Morrison has filed suit asking the Kansas Supreme Court to rule on whether a funeral-picketing law is constitutional.
The lawsuit, filed Thursday, amounts to a test case to obtain a ruling from the state’s highest court. The law, as enacted last month, does not take effect unless its constitutionality is upheld by the state Supreme Court or a federal court.
“This lawsuit is the first step toward giving Kansas a funeral-picketing statute police officers can enforce,” Morrison said. “We wholeheartedly believe that the underlying provisions of the funeral-picketing law are constitutional, and this suit is the way we get the law to take effect.”
The Supreme Court does not rule on whether a law is constitutional unless someone brings a legal challenge, which Morrison did to get the case before the justices.
“As I promised during the session, we will do everything in our power to protect grieving families from disrespectful intrusions during their time of grief and mourning,” Morrison said.
The law says protesters cannot be within 150 feet of a funeral one hour before, during or two hours after a service. Violators would face up to a $1,000 fine and six months in jail.
The law also makes it unlawful to obstruct any public street or sidewalk and allows family members to sue if they think protesters defamed the deceased — an exception to the general rule of law that one cannot libel or slander the dead.
The next step for the court is to consider Morrison’s request for an expedited hearing. He asked the court for a ruling by July 1 and, failing that, to hear the case in early September. The court does not sit in August.
The law was prompted by the Rev. Fred Phelps and his Westboro Baptist Church followers, who protest at funerals, many of them for soldiers killed while on duty. They say that the deaths are God’s punishment for the nation’s harboring homosexuals and that their protests are a form of religious expression protected by the Constitution.
“We know this is wrong,” said Shirley Phelps-Roper, the church’s attorney and daughter of Fred Phelps. “It violates the Constitution. The only question is whether the court will let them get away with it.”
If the law is upheld, she said, it won’t stop the protests, because the church pickets beyond the boundaries set by the law. She said church members had protested at 281 military funerals in 43 states since June 2005.
“These people are so filled with hatred that they are blinded by it,” Phelps-Roper said. “They hate us because they hate their God.”
When the Legislature enacted the bill, members included the provision that it would not take effect until after it had been declared constitutional to lessen concerns that Phelps and his followers would file a legal challenge, win and collect attorney fees from the state.
Senate Majority Leader Derek Schmidt, a Republican from Independence, came up with the idea of getting a court ruling.
“The whole purpose is to be proactive,” Schmidt said.Kansas is among 38 states that have enacted laws dealing with protesting at funerals, according to the National Conference of State Legislatures.
Such laws have been challenged in federal courts in at least three states.
In March, a judge upheld significant portions of Ohio’s law, and in January a judge refused to bar Missouri from enforcing its funeral-protest law.
But Kentucky’s funeral-protest law was struck down in September.