There's almost universal agreement that the tactics and message used by parishioners of the small, fringe Westboro Baptist Church are despicable. Does that make their provocative protests near the funerals of dead U.S. soldiers — under the theory that God is punishing the country because it tolerates gay and lesbian Americans — unconstitutional?
When Supreme Court justices took up that issue in court on Wednesday, the usually highly divided court agreed on one thing: these Westboro Baptist Church people are jerks. Their tactics are "very obnoxious," said Justice Stephen Breyer, usually a member of the court's liberal bloc. They used "nasty signs," said Justice Antonin Scalia, who's been described as the intellectual anchor of the conservative wing of the court.
But where they'd ultimately fall on the Snyder v. Phelps case—a test of the constitutional balance between privacy and free speech—was much tougher to discern.
First up at oral arguments was lawyer representing Albert Snyder, the father of a Marine who sued the church for picketing his son's funeral. He argued that the protesters intentionally inflicted emotional distress on the family.
"Public speech, even directed to a private figure, should be treated differently than as directed towards a public official," said Sean Summers, a lawyer representing the father. The protests were an invasion of privacy, he argued.
"If context is ever going to matter, it has to matter in the context of a funeral," Summers argued.
"Nation, hear this little church. If you want [the soldiers] to stop dying, stop sinning. That's the only purpose of this little church," Phelps argued.
Phelp's church was sued by Snyder in 2007, alleging invasion of privacy, intentional infliction of emotional distress and civil conspiracy due to the protest, which took place at Lance Cpl. Matthew Snyder's funeral in Maryland in 2006. A jury awarded the family $2.9 million in compensatory damages in addition to $8 million in punitive damages according to CNN. Those damages were later reduced to $5 million.
The line of questioning by the justices seemed to acknowledge that this was a tough call.
"So does that mean that now we have to start reading each sign, and saying 'war is wrong' falls on one side of the line but 'you are a war criminal' falls on another side of the line?" asked Justice Elena Kagan. "Is that what we would have to do?" she wondered.