Original Sin: How the Phelps Case Affirms the Constitution

Like it or not, the United States Supreme Court did what it had to do Wednesday when it affirmed Fred Phelps' constitutional right to preach his hateful, hurtful anti-gay gospel at military funerals on behalf of the Westboro Baptist Church. Indeed, you could argue, as Chief Justice John Roberts did, that the free speech protections of the First Amendment were designed for this very case -- where a small minority seeks to dramatically express itself on political issues in a way the rest of the country considers outrageous or even "brutalizing," as Justice Samuel Alito aptly put it in his angry (and lonely) dissent.

The Court's 8-1 ruling in Snyder v. Phelps, which permits Phelps to use the First Amendment as a shield against tort liability, thereby recognizes and replenishes a fundamental truth about American law and the foundational document upon which it is based. Political speech, in a public place, peacefully expressed, is where the lofty platitudes about "freedom" and "liberty" meet the hard truth about placards near a military funeral which say "Thank God for Dead Soldiers." Four of the Court's conservatives and four of its progressive justices all agreed: the signs can stay.

If it is of any solace to those of you who, like Justice Alito, are infuriated by the result here, what helped spare Phelps and company from a $5 million tort judgment was not the value of their placarded message at Lance Cpl. Matthew A. Snyder's 2006 funeral. "While these messages may fall short of refined social or political commentary," was all Chief Justice John Roberts would say about that in his majority opinion, before conceding that the issues the church highlighted -- "the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy -- are matters of public import."

Instead, paradoxically, what ensured victory for the church at the constitutional level were the limitations and restrictions placed upon its picketing members at the time of the Snyder funeral. The Phelps family won twice in court -- don't forget, the Supreme Court affirmed a lower court ruling -- because the church's message was diluted by all sorts of preconditions which prevented members from protesting at the gravesite during the funeral itself. They had a right to be where they were. They obeyed the rules. Here's how the Chief Justice wrote it up:

The church had notified the authorities in advance of its intent to picket at the time of the funeral, and the picketers complied with police instructions in staging their demonstration. The picketing took place within a 10- by 25-foot plot of public land adjacent to a public street, behind a temporary fence. That plot was approximately 1,000 feet from the church where the funeral was held. Several buildings separated the picket site from the church. The Westboro picketers displayed their signs for about 30 minutes before the funeral began and sang hymns and recited Bible verses. None of the picketers entered church property or went to the cemetery. They did not yell or use profanity, and there was no violence associated with the picketing.
That was back in 2006. Since then, states and local municipalities all across the country have enacted more funeral protest regulations which limit the ability of protesters like Phelps to impact the experiences of those mourning their loved ones. The American landscape now is dotted with rules designed to minimize the communicative -- the brutalizing -- force of the church's message. That ought to come as some solace to Justice Alito as well. To paraphrase from "Fiddler of the Roof," lawmakers everywhere are humming the same spiritual: "May the Lord protect and keep Fred Phelps ... far away from us!"

After the ruling, Margie Phelps, a member of the church who is also a lawyer, and who argued the case forcefully for years on behalf of Westboro Baptist, told CBS Radio News what she would like to tell the Snyder family now that they've lost their case. "This was a fool's errand. It was un-American as anything you could have done. That boy is still dead.... Now get down on your knees, mourn for your sins, repent and obey," cackled Phelps, the lawyer, the despised victor in a constitutional showdown they'll be talking about until the next military funeral case gets filed in federal court. 

Like it or not, your constitution protects her. And if we all liked everything about what the Constitution promised, or required, or even permitted, it would be a greeting card or an anthem instead of a touchstone. It ought to be reassuring, not depressing, that the fabled document so clearly and roundly protects a creep like Phelps when he displays the sort of crap members of his family display when they shamelessly seek out opportunities for free international publicity. Reassuring -- and certainly more instructive about the way the Constitution really works than anything Justice Antonin Scalia might have been able to gin up to a group of lawmakers on Capitol Hill.

Drop-down navigation-bar image credit: AP Photo/Carolyn Kaster

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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