Reply #27: because he is the only person who can show a "Harm" do to this law.

[happyslug]

Under the US Constitution the Courts can ONLY hear cases where someone has a claim. The ACLU can NOT file against the law if it has NO client that would be affected. Thus you stuck with Phelps. Other people will be affected but they have to show HOW, with Phelps he has a history of doing such protests and thus has a "Cause of Action" when it comes to this law.

Now as to why the law is restricted to Military Funerals, the courts have been more sympathetic to restrictions on the First Amendment if the restriction is narrowly written, i.e. NOT all funerals, just Military Funerals. Thus the authors of the law made an attempt to make it as constitutional as possible by making it as narrow as possible (and against a KNOWN problem, not a theoretical problem). Thus the law has an ability to be constitutional, but Funerals have ALWAYS been used for political purposes. Look at th irish wakes during the Irish Civil War of 1921-1921. Another case os that of the Chicago black child killed and mutilated by Mississippi racist (His mother insisted on an open coffin to show his injuries as a political statement). Thus funerals CAN BE political statements, as while as providing mourning. When people make anti-war or pro-war statements at a funeral is a Political Statement.

Thus the problem with this type of Statute, at what point does a funeral cease to be private and become a political statement? Except for private services, funeral are public that a continuing problem Funerals not only permit the family to mourn the loss, but Friends, and neighbors thus Funerals tend to be public. Thus the problem is where to cut off some opposing a political statement of a funeral (The problem is the most effective way to minimal such political statements in funerals is to leave it go, anything you do is worse, thus the British left the Irish do their protests during their funeral paraders, Mississippi kept quite about the death of the Chicago child).

Thus while I am torn by this statute, I tend to oppose it. First Phelps will die of old age sooner or later and with him his protest movement (Unless he decides it no longer pays to protest and cut out his protest before then), second the HARM such a statute will do LONG after Phelps is gone outlast the good such a statute will do while he is protesting (The statute could be used in any funeral situation even if no body is present, to stop protest against someone like Bush).