Newsletter Feature Story November 2010

Feature Story - November 2010

Supreme Court Begins New Term With New Justice

The U.S. Supreme Court began its fall term with recently confirmed Justice and former Solicitor General Elena Kagan. The 112th justice to be seated on the Supreme Court, Kagan was President Obama's second pick to the high court behind Justice Sonia Sotomayor.

Kagan succeeds retired Justice John Paul Stevens. In doing so, it marks the first time the Supreme Court has three female justices and no Protestants. The current makeup of the high court is six Catholics and three Jews.

A Gallup Poll found that the Supreme Court started its 2010-11 term with a 51% approval rating. This is lower than a year ago, when approval surged to 61%, but is similar to the court's ratings in 2007 and 2008.

One of the first and most contentious cases argued before the Supreme Court tests the bounds of free speech protections under the First Amendment to the U.S. Constitution.
Snyder v. Phelps involves protests at military funerals.

In March, 2006, U.S. Marine Lance Corporal Matthew Snyder of Maryland was killed in Iraq. His family held a traditional burial service at St. John's Catholic Church in Westminster, Md.

Members of the independent Westboro Baptist Church of Topeka, Kansas, staged a protest outside the church where the Snyder funeral was held. The Westboro church has staged similar protests at funerals of U.S. military personnel killed in Iraq and Afghanistan, saying their deaths are Divine retribution for America's tolerance of homosexuality.

Some of the signs carried by church members at the funerals read, "Thank God for Dead Soldiers," and, "You're Going to Hell."

During the Snyder funeral, the demonstrators complied with local ordinances and police instructions to hold their protest 1,000 feet away from the church.

Albert Snyder, the fallen Marine's father, did not see their signs until he watched television later in the day.

In filing a lawsuit against the church for invasion of privacy and emotional distress, Snyder stated, "All I wanted was to bury my son with dignity and respect. The Westboro Baptist Church's conduct goes beyond all possible bounds of basic human decency, and should be regarded as utterly intolerable in a civilized nation. I am a private figure, and I have the right to grieve without being subjected to such extreme harassment."

In October, 2007, a federal jury found that the Church intentionally inflicted emotional distress on Snyder. The jury awarded Snyder $10.9 million in damages, which the court eventually lowered to $5 million.

In September, 2009, the 4th U.S. Circuit Court of Appeals of Richmond, VA, reversed the verdict. The Supreme Court subsequently agreed to take up the case in March.

Forty-eight state attorneys general and the District of Columbia joined Kansas Attorney General Steve Six in his friend-of-the-court brief in support of Snyder. Another brief supporting Snyder was signed by 56 U.S. Senators.

During arguments before the Supreme Court, attorney Sean Summers, who represents the Snyder family, said, "I would hope the First Amendment wasn't enacted to allow people to disrupt and harass people at someone else's private funeral."

However, Margie Phelps, daughter of the church's patriarch, John Phelps, and Westboro Baptist's lawyer, maintained that the church was responding to a message Snyder brought to the public debate himself by submitting a statement to his local newspaper, questioning the Iraq War following his son's death. Phelps said, the church, therefore, was not invading the family's privacy by responding to Snyder's questioning.

"The words that were at issue in this case were people from a church delivering a religious viewpoint, commenting not only on the broader public issues that the discussion was underway in this nation about dying soldiers, about the morals of the nation," Phelps said.

Many conservative groups and those in the faith community have denounced the protests by Westboro Baptist Church, but support the right of congregation members to express their views, including Faith and Action President Rob Schenck.

"The facts in the Snyder case, while appalling, are also rare; so rare that the opinion of the justices should treat it as such. In other words, whatever restrictions they may place around this kind of behavior should be limited to only rare–exceedingly rare–circumstances, like the circumstances in this case. Two wrongs don't make a right–and limiting other, legitimate speech, and thereby weakening the First Amendment, would be yet another wrong," Schenck said.

Likewise, Liberty Counsel Founder, Mathew Staver, said, "The Supreme Court must not use the bad facts of this case to restrict legitimate free speech rights of law-abiding citizens. The First Amendment does not grant to anyone a veto right over another person's speech, simply because it might be offensive. Free speech needs breathing room. I would rather tolerate a person's offensive speech than be silenced by the force of law."

Dr. Richard Land, president of the Southern Baptist Convention's Ethics & Religious Liberty Commission, told Baptist Press, "What the Westboro Baptist Church does is odious and despicable. In exercising their free-speech right to insult the memory and bring further emotional harm to loved ones of fallen heroes, they are engaging in disgraceful behavior.

My heart tells me they should be outlawed from doing this; however, my head tells me that anytime we allow the government to restrict religious speech and activity for any reason, we are setting a very dangerous precedent and we are embarking on a steep and slippery slope to dark and dangerous places. What government is allowed to do to Westboro Baptist Church today, they could be allowed to do to other religious groups tomorrow or the day after," Land said.

Ken Klukowski, director of the Center for Religious Liberty at Family Research Council, noted, "The frustration that arises from people like the Phelpses is that it makes it much harder for well-meaning and gracious people of faith–especially Christians–to express their personal religious objections to things such as same-sex marriage without being lumped in with the offensive words and tactics of the Westboro crowd. Those who believe that nobody is perfect, and seek to share a message of salvation and forgiveness in Jesus Christ to all people, can easily be mischaracterized as sharing the same faith as the Phelpses, if the person they're reaching out to happens to be homosexual.

In other words, cases like this endanger religious liberty. It's hard to shut down what Fred Phelps is doing without also seriously curtailing religious speech for adherents of mainstream religious faiths. Snyder's argument, if adopted, would curtail free speech on a number of issues that are currently protected," Klukowski stated.

A decision in the case is expected by June.

The Supreme Court declined to hear appeals in two religious-related cases.

The justices refused to take a New Jersey case dealing with public schools and religious music. The high court ended a six-year legal battle that began when a parent sued the South Orange and Maplewood School District over a policy that barred religious songs at public concerts. Since 2004, students and student groups in the school district have been banned from playing traditional Christmas music at events during the holiday season.

The Supreme Court also rejected an appeal from a Riverside, California, high school alleging violation of freedom of religion by the University of California. The justices, without comment, let stand lower federal court decisions that upheld U.C.'s disqualification of some English, history, government and religion classes at Calvary Chapel Christian School of Murrieta for being too narrow or unscholarly to fulfill the university's entrance requirements.

Among the cases being argued before the Supreme Court this month, is the constitutionality of Arizona's tuition tax credit system. It enables taxpayers to receive a tax credit for donations to private organizations that use the funds for scholarships to specific parochial schools. The 9th U.S. Circuit Court of Appeals previously ruled that the system violates the Establishment Clause of the Constitution because it lacks religious neutrality.

The U.S. Conference of Catholic Bishops filed a brief in the case urging the justices to reverse the lower court ruling. The brief, in part, said, the case is not simply about the question of "indirect aid" to religious schools, but that "government respect for the voluntary choices of private parties in matters of religion embodies the most fundamental goal of the religion clauses as a whole."

Another free-speech case will be argued before the Supreme Court this month, when the justices consider a California law banning the sale and rental of violent video games to minors.

Lawyer Maureen Mahoney, who frequently appears before the court, said, "This would be a major, major upheaval of the law if the court upholds the statute.

If you can prohibit sales to minors in video games because of violence, presumably you can do it in other areas, like literature."

In December, the Supreme Court will hear arguments on whether federal immigration law preempts Arizona's efforts to impose its own sanctions on employers who hire illegal immigrants. At issue is whether Arizona law intrudes in the area of immigration, which is essentially the federal government's responsibility.

That could set the stage for further court challenges of a recently approved Arizona law that would require law enforcement officers to check the immigration status of people they take into custody, if there is a "reasonable suspicion" that they are in the U.S. illegally.

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