Sunday, March 6, 2011

Like a Ghost Into the Fog

A number of years ago, Counting Crows released a song that contained the lyric, "and between the moon and you the angels get a better view of the crumbling difference between wrong and right." While I would not pretend - in this lifetime or the next - to possess anything more than a scintilla of knowledge of constitutional law possessed by all nine Supremes, I must confess that last week the Court handed up a decision that parked Adam Duritz's words squarely in the forefront of my mind.

I am speaking of course of the Court's 8-1 decision that afforded First Amendment protection to the Westboro Bastards (oops - I meant to write Baptist) Church, which is the group of hate-mongering miscreants that barnstorm around the United States, showing up at funerals (principally those of soldiers) in order to spread their message of hate. Chief Justice Roberts, writing for the eight-member majority in Snyder v. Phelps, wrote that even hateful, distasteful speech such as that propagated by the Westboro bunch is protected speech. The Chief and the rest of the majority expressed much sympathy for the families whose moments of grieving a loved one's loss are exacerbated by the actions of the Westboro protesters. However, the Court held that even though what is said and what is done at the funerals by these jagoffs (in the interest of full disclosure, Chief Justice Roberts did not use that term to describe them. I took a bit of editorial license right there) is horrible and cringe-inducing, our Constitution gives them the right to express themselves in that manner.

The lone holdout from the Court's opinion was New Jersey's own Justice Samuel Alito. Maybe it is a Jersey thing? The willingness to confront a bully head-on and stand toe to toe with him until he gets the message that his brand of bullsh*t just does not play well around here. Justice Alito authored a dissent that the Washington Post described as "muscular". He referred to what the Wasteboro group did at Matthew Snyder's funeral as "brutalizing" the Snyder family. Justice Alito wrote that the Wasteboros had no right (and this time I take no editorial license), "to launch a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability."

The joyous and perplexing thing about the Constitution is that it protects the right to do many things that many of us hold sacred while also protecting the right to do many things that many of us consider despicable. Justice Alito is considerably brighter than I am and has forgotten more about the Constitution than I shall ever learn. I suspect that his dissent was written as much from his heart as it was from his deep well of constitutional scholarship. His eight colleagues on the Court are not often noted for their like-mindedness. Yet, on this issue, even when confronted with this facially egregious fact pattern, they opted to see black and white instead of red.

Candidly, I neither find fault with nor take issue with either side of the argument. I have read enough about how the opinion-rendering process works at the Court to believe that prior to authoring his dissent Justice Alito had a firm understanding of the position of his colleagues. By eschewing unanimity, he assumed the role of Horton. He was free to say what he meant and leave little doubt that he meant what he said.

It is likely as little comfort to the Snyders today as it was on the day that their son died in combat and as it was on the day that they laid him to rest that the Wasteboro boobs and their right to behave as they behave remains inviolate because of Matthew and every other man and woman who has fought beside him at any time in this nation's history. The Phelpses would not and could not exist in any society that does not protect to the death one's personal freedoms. They are a uniquely American animal....

....and a glimpse perhaps of a better view of the crumbling difference between what is legal and what is right and which of the two our justice system is designed to protect.

'Round here.

-AK

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