ACLU challenges Michigan’s funeral protest law

A state law intended to stop protests at funerals such as those engaged in by the vehemently anti-gay Westboro Baptist Church is being challenged by the ACLU of Michigan after it was used by the Clare County Sheriff’s Department to arrest a couple participating in the funeral of a friend with a banner on their car.

The ACLU filed the suit on behalf of Lewis Lowden, a U.S. Army veteran, and his late wife Jean, who were arrested on Sept. 26, 2007, while participating in a funeral procession for Army Corporal Todd Motley, a soldier killed in Iraq. They were arrested for violating Michigan’s law against funeral protests, which says:

A person shall not do any of the following within 500 feet of a building or other location where a funeral, memorial
service, or viewing of a deceased person is being conducted or within 500 feet of a funeral procession or burial:

(a) Make loud and raucous noise and continue to do so after being asked to stop.

(b) Make any statement or gesture that would make a reasonable person under the circumstances feel intimidated, threatened, or harassed.

(c) Engage in any other conduct that the person knows or should reasonably know will disturb, disrupt, or adversely affect the funeral, memorial service, viewing of the deceased person, funeral procession, or burial.

Similar laws were passed in many states over the last few years in response to the ongoing protests by the Kansas-based Westboro Baptist Church at the funerals of American soldiers. The church, led by Fred Phelps and made up mostly of members of his own family, claims that American soldiers deserve to die because America has embraced homosexuality, thus bringing about God’s punishment.

But in this case, the Lowdens argue that they were not engaging in any form of protest at all and instead were there at the invitation of the family to mourn the loss of a close family friend. For many years, the Lowdens had taped homemade signs in the windows of their van, signs with political messages. Most of those signs were in opposition to President Bush and his administration’s policies.

According to the legal complaint, when the Lowdens arrived to take part in the funeral procession that day, they had the same signs they usually had on display on their van. Clare County sheriff’s deputies who were directing funeral traffic instructed the Lowdens to leave the procession and pull over. Despite explaining to the deputies that they were not protesting the funeral but were there because the deceased was a close friend, the Lowdens were arrested and their van impounded.

They were held for 24 hours before being released, missing the funeral of their friend. The charges against them were eventually dismissed, but the Lowdens are now suing to recover the financial costs stemming from the arrest and impoundment and for compensatory damages for the emotional distress caused by the arrest. Jean Lowden, who was in ill health at the time, has since passed away.

In a press release announcing the suit, Lewis Lowden said: “I can never express the shame and humiliation that Jean and I felt when we were forced out of the funeral procession and arrested. In the end, this lawsuit may bring us justice; however it will never give us back the moment our beloved friend Todd was buried. I only wish Jean lived to see the day we filed this lawsuit.”

The suit also seeks to overturn Michigan’s funeral protest law as unconstitutionally vague and a violation of the First Amendment’s free speech clause. You can read the full legal complaint here.