New legislation passed by Congress and sent to President Barack Obama will do much to help vets and their families. Under the Honoring America’s Veterans and Caring for Camp Lejeune Families Act, the rights of surviving spouses will be greatly extended, larger VA loans will be permitted in high-cost areas and the VA will continue to have the right to offer adjustable-rate mortgages (ARMs). These are right and decent measures supported by politicians of every flavor — the House version of the bill passed by a vote of 380 to 0. But within the proposed legislation is some language which is certain to set off a new debate: permitting funeral protests.
Stolen Valor Act
It was obvious that Congress looked at the recent Stolen Valor decision when writing the new legislation.
The Stolen Valor Act — a law that would prohibit individuals from claiming military service they did not have — was rejected by a 6-3 vote earlier this summer by the Supreme Court on the grounds that the law was too broad and violated the First Amendment.
Under the Stolen Valor Act, there was no doubt that the defendant, Xavier Alvarez, lied about his military service and did not win the Congressional Medal of Honor. But before the Supreme Court the issue was different:
Under the Honoring America’s Veterans Act, Congress has again taken up a First Amendment issue: the ability of protestors to appear at veteran funerals. Such protests have provoked strong public outrage with the result that there have been notable counter-protests as well as a major Supreme Court case.
In the 2010 Snyder decision, the Supreme Court explained that “for the past 20 years, the congregation of the Westboro Baptist Church has picketed military funerals to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in America’s military.”
Such protests, declared the Court, were lawful and protected by the First Amendment.
Protecting Military Families
Under the proposed Honoring America’s Veterans legislation, Congress does not broadly or generally prohibit demonstrations at military funerals. Instead, it places limits on the time and place of such protests. In effect, the rules would be similar to the standards required to get a permit in a public park.
For example, protests are prohibited two hours before and two hours after a military funeral is set to begin. Also, protestors must remain at least 300 feet away from grieving families.
There’s little doubt that the anti-protest provisions in the Honoring America’s Veterans legislation will be challenged in court once the law is passed. It’s then probable that the legislation will ultimately come before the Supreme Court. However, unlike the broad and sweeping language of the Stolen Valor Act, the new legislation is finely tuned and contains very clear specifics and limitations. It seeks a balance between the right to protest and the dignity, respect and privacy owed to military families.
Unlike the Stolen Valor case, the new law should pass Supreme Court scrutiny because rights under the First Amendment are not unlimited — famously, no one is allowed to should “fire” in a crowded theater, we prohibit libel and slander and we have copyright laws to protect unique and original expressions.
Next, the Congress should go back and fix the Stolen Valor Act. No one should be able to claim military service or honors that were not earned when applying to a college, seeking a job or applying for government benefits.
Photo courtesy bterrycompton