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WASHINGTON (October 1, 2010)—In March 2006, the family of Lance Cpl. Matthew Snyder came to St. John's Catholic Church in Westminster to mourn their fallen soldier and son.
Seven members of the Kansas-based Westboro Baptist Church also came to the funeral, hellbent on delivering their anti-homosexuality message with signs saying "Thank God for Dead Soldiers" and "Semper Fi Fags"—a message that had nothing to do with Cpl. Snyder's life.
Dozens of motorcycles from the Patriot Guard Riders flanked the cortege, trying to insulate the family from the protesters.
Westminster resident Dorris Lockard, 77, whose home abuts St. John's, is still stunned that anyone could picket such a solemn, sad occasion.
"A funeral is between you and the Lord."
Or is it? The events that day became public property—featured on national television and discussed in talk shows—and now the clash has come before the U.S. Supreme Court in one of its first events of the new term. On Wednesday, the court will be called upon to weigh whether the First Amendment protects protesters at funerals from liability for intentionally inflicting emotional distress on the family of the deceased.
Following the protest, Albert Snyder, the father of the fallen Marine, sued the church and its Pastor Fred Phelps in a Baltimore court and won nearly $11 million for invasion of privacy and emotional distress—a verdict which was later halved by the judge and then wiped out by a federal appeals court in 2009.
"... (T)he protest was confined to a public area under supervision and regulation of local law enforcement and did not disrupt the church service," wrote 4th U.S. Circuit Court of Appeals Judge Robert B. King in a unanimous reversal by a three-judge panel. "Although reasonable people may disagree about the appropriateness of the Phelps' protest, this conduct simply does not satisfy the heavy burden required for the tort of intentional infliction of emotional distress under Maryland law."
Decisions like these dumbfound Rose Frock, a friend of the fallen soldier's mother, who has rejected the protesters' rights since day one.
"I'm so outraged," she said Thursday. "And I guarantee, if they had done that to my family, I would have went down there and busted those signs up."
Frock, whose own son died in a motorcycle accident in 1986, says the Snyder family's wounds will likely never heal. "Your pain goes on and on and on."
And on and on, it turned out, when Albert Snyder was greeted in March by a court order requiring him to pay $16,510 in legal fees incurred by the Westboro Church. The order drew national headlines and fired up, most notably, Fox News commentator Bill O'Reilly, who ultimately offered to pay the $16,510 bill.
"The case demonstrates just how out of whack we are in this country when it comes to dealing with evil," O'Reilly said on his show, "The O'Reilly Factor," in April. "We simply don't know how to confront it. And the forces of darkness understand exactly how to use our system to do as much damage as they can."
Founded in 1955, the Westboro Baptist Church is led by Phelps, whose teachings blame homosexuality for the deaths of soldiers and events like the terrorist attacks of Sept. 11, 2001. Westboro preaches hate because, it says, the Bible preaches hate.
"The maudlin, kissy-pooh, feel-good, touchy-feely preachers of today's society are damning this nation and this world to hell," reads Westboro's GodHatesFags.com website.
Among the pastor's 60 or so followers is his daughter Margie J. Phelps, a lawyer who will represent the church before the court. Upholding Snyder's right to sue would be a "crushing" blow to "established, fundamental, organic" law based solely on unpopular words, she said.
"We have a republic that people swear allegiance to, that says the mob rule cannot shut up the dissenting voice," she said, adding: "While it may seem, at first blush, sympathetic to say, 'Don't talk about the dying soldiers,'" plenty of others—the press, politicians and soldiers—express their own, more patriotic, views regularly.
Meanwhile, Snyder's attorney, Sean E. Summers, summed his case with a question: "Instead of thanking Mr. Snyder for his sacrifice, do we really need to ask him for another, as though simply the cost of doing business in our free society?"
Summers, who is representing Snyder pro bono, stressed the need for balance in a society committed to religious rights, privacy and free speech.
Fourteen groups—ranging from the Veterans of Foreign Wars and the American Civil Liberties Union, to a bipartisan brief led by Sens. Harry Reid, D-Nev., and Mitch McConnell, R-Ky.—filed their interest in the case. In addition, the state of Kansas was joined by 47 other state signers, including Maryland Attorney General Doug Gansler, and the District of Columbia on its amicus brief to the Supreme Court, which accused the protesters of "emotional terrorism."
Both Maryland Democratic senators, Barbara Mikulski and Ben Cardin, joined the Reid-McConnell brief, which said: "Like individuals in their home or those entering a medical facility, private individuals attending a funeral become 'unwilling listeners' subject to a 'degree of captivity' that 'makes it impractical' to avoid exposure.
"A funeral almost by definition occurs at a specific place and time, and cannot simply be relocated to avoid unwanted intrusions."
Speaking to the VFW's position, attorney Timothy J. Nieman said there are limits to free speech.
"You cannot yell fire in a crowded theatre," he said, adding that funerals represent the sort of place where family members are a captive audience, where "they only have one opportunity to say goodbye to their loved ones."
Attorney Gene C. Schaerr with The American Legion expressed similar sentiments.
"The idea (in this case) that we have to allow people to protest in order to enjoy our First Amendment right strikes me as preposterous," he said. Funerals, he argued, should enjoy some special protections from interruption.
Those supporting the First Amendment rights of the protesters include David Rocah, an attorney with the ACLU Foundation of Maryland. Despite what Rocah acknowledges as "really, really hateful and disgusting speech," he said the protesters should nonetheless be protected.
"If we allow speech to be regulated because 12 people think it sufficiently offensive, than that renders the First Amendment meaningless," he said.
No matter Wednesday's outcome, Margie Phelps said it will have no impact on the Westboro Church. "We're going to keep testifying to this nation until our testimony is complete," she said. "And this church is determined to say what's most important about the dying soldiers: That they are dying for your sins. If you want them to stop dying, stop sinning."
Capital News Service contributed to this report.
Gay Haters Protest at Funeral of Female Md. Marine Killed in Iraq, February 16, 2007