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Supreme Court's 8-1 Westboro Ruling -- and Alito's Passionate Dissent

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U.S. Supreme Court Justice Samuel Alito likely spoke for millions of Americans Wednesday when he decried the strategy, tactics and motives of Fred Phelps and his Westboro Baptist Church zealots, who picket military funerals to express their virulent anti-gay views.

But on the Court, Justice Alito spoke alone.

The other eight justices -- four of them conservatives, four of them progressives -- all sided with the Phelps family and against the family of Lance Cpl. Matthew Snyder, whose funeral the church picketed in early 2006. Chief Justice John Roberts, writing for the majority, declared that the First Amendment encompasses the political, public and peaceable protests of the group. Accordingly, the chief justice voided a multi-million-dollar tort verdict the Snyders had won when they sued the Phelpses for picketing their son's funeral with signs like "Thank God for Dead Soldiers."

Justice Alito was the sole dissenter -- he called the Phelps' conduct "brutalizing" -- and thereby became the official voice of people everywhere who were unwilling or unable in this instance to fit the lofty goals of the First Amendment with the gutter tactics of the church. Unfettered by the responsibility of creating legal precedent (no one ever has to defer to a dissenting opinion, remember), and emboldened by the strength of his feelings on the topic, Justice Alito wrote a passionate attack upon the majority's ruling and a stoic defense of what many people following this story might consider plain, old common sense.

Here is how Alito began his dissent:

"Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew's funeral into a tumultuous media event. They then appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury. The Court now holds that the First Amendment protected respondents' right to brutalize Mr. Snyder. I cannot agree."

You get the gist. Alito concluded his dissent with these strong words: "Respondents' outrageous conduct caused petitioner great injury, and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered." And so a justice who approved of such broad free speech rights for corporations in the Citizens United campaign finance case last January disapproved of the rights of Phelps and company to use the Snyder family, in some of its darkest moments, as a marketing tool.

No one who saw or heard Alito at oral argument in the case in October, when he barely concealed his contempt for the Phelps family, ought to be surprised by what he subsequently wrote. If anything, the dissent was milder than many might have predicted when they came out of court after hearing argument in the case. For him, the Court drew a line in the wrong place between outrageous conduct and protected speech. For him, the Phelps family had gamed the law all the way through to the end -- and then emerged victorious at the highest court in the land.

There is a certainty dignity to being the lone dissenter in a high profile case. Sometimes these dissents just fade into memory, a statistic on the sheets Supreme Court officials pass out every summer telling the public which justice voted with whom and how often. Sometimes these dissents become law school fodder. Sometimes they are cited by hopeful attorneys in the hope of making a small point in a large case. And sometimes, given enough time, they become the law of the land.

For years in the 1970s, when he first came to the Supreme Court, Nixon-appointee Justice William Rehnquist was the lone conservative voice on the tail-end of the Warren Court. He wrote many sole dissents. But over time, during the 1980s, the Court moved to the right, far to the right, and by the time that Rehnquist was promoted to chief justice, many of his dissenting views had become majority precedent. And if and when the Court drifts back to the left, the same thing will happen all over again.

The lone judicial dissent thus can be to legal rulings what jazz is to music -- an opportunity for the artist to go off on a sanctioned riff. The sole dissent can be angrier. Freer. It can even be poetic. Indeed, it was Justice Oliver Wendell Holmes, in dissent in the World War I-era Espionage Act case Abrams v. United States, who uttered among the most important and famous words in the history of the Court. They were words about speech and dissent. Holmes wrote:

"Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment."

Now, Justice Alito is no Justice Holmes. And Fred Phelps and his "church" are no worthy cause. But Alito's arguments and language resonated deeply with many people who looked at the majority's opinion, scratched their heads, and wondered why. His dissent, about the Phelps family's dissent from decent human behavior, is probably what Justice Holmes had in mind in the first place.

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In one key respect Alito is wrong. We do not have a broad right to bury our dead in peace. Mr. Snyder has many rights, and some of them directly protect his choices regarding the funeral of his son, but the odious Phelpses could not have violated any rights with regard to the burial of his son because there are no such rights.

Unless there were a specific distinction between the actual burial of the actual body and, say, a memorial service, the state has numerous fairly autocratic and invasive powers over corpses and inquiries into deaths. The military has more.

And corpses have no rights at all.

It's not clear whether this 'right' is just a rhetorical flourish, or whether it is inferred by Alito to obtain to Mr. Snyder by an extension from the First Amendment (perhaps within a penumbra). I trust it's just framing; Alito has generally been a very coherent, rational thinker; Thomas is the incoherent and irrational one, though Scalia has his moments.

It's not just that people don't have clear freedom of speech when funerals are concerned; freedom of religion is also not generally powerful enough to counteract state interest. Most attitudes toward corpses are religious in nature, and they vary wildly, yet some practices clearly rooted in religion have been outlawed anyway, such as open-air burning. The state strictly regulates corpse disposal and routinely interferes with family intentions by requiring autopsies and, in the case of certain communicable diseases, specific forms of disposal or permits to do things we might consider our own prerogative, such as keep or store an unembalmed corpse, keep a corpse for longer than a few hours or a day, display a corpse in public, or scatter ashes on a waterway, from an airplane, or over public property. It's also true that many coroners can make these decisions arbitrarily --coroners are usually appointed--so enforcement of such regulations is bureaucratic rather than political.

Autopsies can be ordered by investigative authorities, and such proceedings can delay or even prevent funerals. In some cases body parts can be withheld indefinitely. Also, of course, courts can order exhumation--essentially, the unburial of a corpse.

So it's clear that Justice Alito's observation does not have anything like a force of law.


March 10 2011 at 2:35 PM Report abuse rate up rate down Reply

This is NOT a free speech issue! This wacko cult has the whole world to spew their convoluted dogma! They don't have to do their insulting ugly dance at the quiet funeral of an American soldier killed in action while serving his country! We will even give them a pass to do their thing at the future funerals of Bush and Cheney! Roland C. (Orlando) Woodaka

March 04 2011 at 4:38 PM Report abuse +2 rate up rate down Reply

Justice Alito won himself a pardfon from the Impeachment of the less than (s)upreme Court that we have proposed! We have contacted our two Senators and one Legislator to join fellow Americans and suppoort the Impeachment of the currently right wing packed (s)upreme Court! Their ruling on the issue of a veteran's funeral service, being quasi-sacrosanct, should not be insulted and defamed by political and religious cult members!
Those of you who pay attention know that the present (s)upreme Court has been reversing the laws of the land
to fit their "square peg in a round hole" theories of right wing agenda! It is time to dump them! Roland CV. (Orlando ) Woodaka

March 04 2011 at 4:31 PM Report abuse rate up rate down Reply
1 reply to Orlando's comment

Roland, you Bozo, I too wish that the verdict would be different. However, anyone with an ounce of brain, would have predicted the Courts's ruling. We have a constitution, the court is supposed to uphold the Constitution. They closed. I cheer the dissent by Alito...a CONSERVATIVE. I call you a bozo because anyone that would call the Supreme Court 'conservative" today is indeed a bozo. With the appointment of the clear thinking Justice Roberts and the addition of Alito, the Supreme court is the closest to being "Conservative" in the last 40 years. JoeG

March 06 2011 at 5:03 PM Report abuse -2 rate up rate down Reply

Whilst I understand where Justice Alito is coming from, I believe that when you join the Army and go to war, death is possible to happen. This thing about trying to ignore free speech is a sign of putting people in a position so they can't use their freedom of speech. You cannot try to take away the freedom of speech. We do not live in a communist country. If indeed America as we all know is a country of freedom then why is the learning justice would think that the free speech doesn't count in this issue.

March 04 2011 at 4:01 PM Report abuse rate up rate down Reply

The late Senator Everett Dirksen of Illinois had a line that sometimes, compassion trumps constitutionality. If the U.S. is a civil society, and I believe that it basically is, then sometimes, the law should enforce what is right instead of what is constitutional.

Why should grieving family and friends have to put up with a bunch of crazy people who claim to be a church? The church isn't affiliated with a denomination. The membership is almost exclusively family of the pastor. The pastor isn't ordained, but rather, is a disbarred attorney. The membership apparently don't hold jobs, since they have free time to run around the country, staking out spots by churches and funeral homes. And I'd like to think that if Jesus came back today, he would tell them that while homosexuality may be a sin (or not), God isn't causing the deaths of U.S. service personnel, because the U.S. isn't trying to stop this sin.

March 04 2011 at 11:52 AM Report abuse +3 rate up rate down Reply

While Justice Alito was passionate in his dissent, it doesn't make his dissent any more valid. His feelings are one thing and they don't have a place on the bench. I think the 8-1 ruling speaks for itself. I'm not saying that I don't agree with him about his feelings, I do, but, one can hardly rely on their feelings, in total, to guide them through life. The Supreme Court Justices are given a job to uphold the Constitution, not to legislate and above all never to rearrange our rights to satisfy their individual emotions or to satisfy anyone eles's feelings, no matter how hurt they are or how wrong a thing they think it is.

March 04 2011 at 10:53 AM Report abuse -2 rate up rate down Reply

What I don't undertand is why some of you are posting about the right to protest, the right of "dissent". What has a lone soldier's death and burial got to do with a supposed protest against homosexuality. To the best of my knowledge neither this soldier nor the others were homosexuals. To suggest (as does the Westboro Baptist Church member's actions) that this soldier is somehow responsible for the presence of homosexuals in the armed services, that his death is part of God's revenge on America is utterly ludicrous. To elevate the actions of Westboro Baptist Church to a statement of protest or dissent is giving credit where none is due.

If they truly wanted to protest the presence of homosexuals in the service, or indeed, the present political climate of liberal aid and abetment of the gay agenda, then they would and should protest against the organizations, politicians and/or military officials responsible for these perceived sins.

The actions of the Westboro Church can only by contrued in one way; a hateful and cruel torture of grieving parents at the most painful moment in their lives. And this they attribute to God.

March 04 2011 at 5:07 AM Report abuse +9 rate up rate down Reply

I agree 100% that free speech should NOT be impeded by government in ANY way. BUT........... I also believe that if someone uses their right to free speech to call you an SOB, you also have the right to knock out a few teeth. Saying what you want is an American right. So is having to pay the consequences when you say it to the wrong person.

March 04 2011 at 4:24 AM Report abuse +8 rate up rate down Reply

I believe that the justices got it right, if they were asking America what we really think about free speech and our rights and limitations thereof. Fo I do not want the Supreme Court to decide alone on this one and if this decision get's America thinking more about that free speech and what it's limitations are then all the better. The very old example that you can not yell "Fire" in a crowded building or room always comes to mind. The connotations behind such a statement are well known. But what if America finds it's sense of decorum, it's sense of decency and it's real sense of right and wrong and stands up to the Phelp's and says this is indecent and wrong. This is morally malignant and this does not fall under the heading of permissable Free Speech. We intelligent, decent thinking Americans have our limitations and this type of hatred speech and demonstration is plain wrong on so many levels. Then the Justices would have to listen as the tides of change for less hatred speech in America and then they would not fear that slippery slope of erosion waiting to take America's Freedoms away. So if the Justices our asking for the opinions of good and decent Americans then let's send them the message. Thank you for protecting our Rights to speak freely but we Americans believe this type of expression falls under the category of hatred and hate speech and therefor has no room in America nor should it be protected by our Constitution. The Constitution has much better things to protect.

March 04 2011 at 1:31 AM Report abuse -5 rate up rate down Reply

Fred Phelps and his congregation leave a lot to be desired.

March 03 2011 at 11:51 PM Report abuse +7 rate up rate down Reply

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