Kansas Supremes Refuse Legislature’s Punt on Funeral Picketing Law

Constitutional Law

Kansas Supremes Refuse Legislature’s Punt on Funeral Picketing Law

Posted Mar 11, 2008, 01:27 pm CDT
By Debra Cassens Weiss

A Kansas law regulating picketing at funerals has been struck down because of an unusual provision that required the state supreme court to rule on the measure’s constitutionality before it could take effect.

Legislators added the so-called trigger provision out of fear the state would have to pay the legal fees of a Topeka church if it were successful in challenging the law, the Kansas City Star reports.

Members of the church say God is punishing the United States for homosexuality by killing soldiers and other Americans. Members show up at soldiers’ funerals carrying signs with such messages as "Thank God for Dead Soldiers" and "God Hates Fags.”

The court said in its opinion that the law improperly required the attorney general to challenge the law and the state supreme court to rule in the case.

“The separation of powers doctrine prohibits the legislature from directing the attorney general to file a lawsuit that would seek an unconstitutional remedy, and the judgment sought by the judicial trigger provision would exceed the constitutionally defined power of a court, which is limited to deciding actual cases or controversies,” the court said.

Missouri has also passed a law designed to bar funeral picketing. The St. Louis-based 8th U.S. Circuit Court of Appeals has enjoined its enforcement because of First Amendment concerns.

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