Wednesday, August 31, 2011

Speech at Funerals: Snyder v. Phelps Through the Looking Glass

By Mike Dorf

Yesterday's NY Times carried a story about a lawsuit in federal district court alleging that the federal government is violating the First Amendment by censoring the religious speech of VFW honor guards at a military cemetery in Houston, TX.  The complaint lists causes of action under freedom of speech, free exercise of religion, the Establishment Clause, and the Religious Freedom Restoration Act (which was held invalid by the Supreme Court as applied to states and localities in 1997 but remains valid against the federal government).

Juxtaposing the Times story with the complaint and supporting affidavits, it appears that there is an important disputed question of fact: Does the Department of Veterans Affairs require private speakers to obtain prior family approval to recite religious messages while permitting non-religious messages without prior family approval (as the complaint alleges), or does the policy require family approval for any spoken text?  Resolution of that question could be important for determining whether the government is engaging in viewpoint discrimination. I don't know nearly enough about the facts in the case, so I'll just note the factual question and move on.

Even if the government is not discriminating against the religious content of the ceremonies that the Veterans wish to perform, the policy could be unconstitutional simply in virtue of the fact that it presumptively silences speakers on public property.  Nonetheless, I think the right doctrinal answer is that, absent discrimination, the policy is valid.

Why?  Because a military cemetery is government property but not a so-called "public forum."  Indeed, it is not really a forum for speech at all--except in the very limited sense that the families of deceased veterans are entitled to hold ceremonies and visit graves in the cemeteries.  In such a setting, government regulation of speech need only be "reasonable," and it is hard to argue that it places an unreasonable burden on speech to require that those who would speak at a funeral receive permission from the family members who are conducting the funeral.

That result will at first seem odd if stacked up next to the ruling earlier this year in Snyder v. Phelps.  Can the First Amendment really mean that bigoted protesters have a right to picket military funerals but that a VFW honor guard should be presumptively excluded?  No, of course not, because that's not a fair characterization of the two cases.  The Court in Snyder emphasized that the respondents were not at the funeral.  Indeed, they were not even visible from the funeral.  So there is no real inconsistency.

Still, if the right answer in the Houston case is that the government may require speakers to get permission from the deceased's family before speaking at a funeral, that must be because a funeral is an extraordinary event.  Under most other circumstances, it makes sense to construe the First Amendment to require that the default rule is to permit speech, until the prospective audience opts out.  The plaintiffs in the Houston case argue that the government policy at the cemetery amounts to a "prior restraint" on their speech.  In most other contexts, that might be right.  But in certain settings the presumption can be reversed.  The home is one such setting (as illustrated by Frisby v. Schultz).  Cemeteries during funerals ought to be another.  Certainly nothing in the Snyder case rules out that conclusion.


Bob Hurt said...

In the Snyder case the protesters disrupted the ceremony, and their message alienated the attendees to the ceremony. In the Houston scene, the honor guard conducted a traditional ceremony against which no one protested, not even the cemetery director. The policy seems idiotic, AND illegal. The honor guard ought to continue its tradition unless the grieving family requests otherwise, and the cemetery director ought to stay out of it.

Let's face it: funerals are idiotic. The dead don't care, and their bodies/ashes have no life in them. people might as well bury a stool, log, or slip of paper. In fact, people shouldn't bury anything at all. Bodies should be converted to Soylent Green or fertilizer after harvesting organs.

You find the best kind funeral in the streets of New Orleans - a jazz band procession celebrating the life, not mourning the loss. Everybody has plenty of advance notice of a serviceman's death. Plenty. No surprises. So why the mourning?

Anyway both the Houston case and the Snyder case point to nonsense in the judiciary, nonsense called public policy. What part of "make no law respecting an establishment of religion, or prohibiting the free exercise thereof" don't the courts and government executives understand? Like it or not, Courts make laws all the time. Every time they make a ruling like Snyder, or edict as in Houston, they interfere with free speech AND free exercise of religion, AND they establish a new religion of PUBLIC POLICY.

Public Policy is a polite term for Tyranny.

Joe said...

I agree with the basic sentiments expressed by this post.

But, the bottom line is that a policy set forth during the Bush Administration to respect the wishes of the vet's families should not be that controversial. The concern is that the family's wishes (and if known, the vet, I assume) is paramount. This is as it should be.

A funeral is a type of sacrament for many religious traditions. It is fitting and proper that it is carefully set forth that the family's religious beliefs are respected. If the groups here want to express another viewpoint, don't do it on the military ceremony.

The viewpoint issue is serious but I think a case could be made that there is something specifically important about religious content here. But, from the article alone there doesn't even seem to be such a line. The controversy might have rose over that issue, but it isn't the only thing permission is required for.

Michael C. Dorf said...

Joe: The plaintiffs' complaint and supporting affidavits contend that the policy has been applied in a discriminatory manner. As I said in the post, I don't know whether that's true. You raise an interesting possibility: Even if the cemetery authorities are discriminating against religious speech, that still might be acceptable. I don't think that's a permissible result under existing Religion Clause case law but a policy argument could be made for it on the grounds you suggest.

Joe said...

Thanks for the reply and I concur.

Upon reflection, I think even on policy grounds an appropriate regulation would cover all types of funeral ceremonies, so that permission even for a secular event.

My views are somewhat colored by the understanding that there are certain events that have a sacred character, that involve questions of conscience, even when expressed in a way not typically seen as religious.

Birth and deaths are of this caliber and the regulation should cover all, including those which most would deem secular.

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