In response to the nationwide publicity surrounding the Phelps family that operates the Westboro Baptist Church and their controversial demonstrations outside the funerals of fallen service members, HB 3241 was introduced.
In its original form, HB 3241 would have prohibited “picketing” and “disruptive activities” within 300 feet of the property line of a location hosting a funeral service. This effectively prohibited protected activity on public property. The ACLU testified that HB 3241 was unconstitutional under the Free Expression provision of the Oregon Constitution (Article I, section 8) and the First Amendment of the United States Constitution. Along with our written testimony, we submitted a legal memorandum prepared by the ACLU’s cooperating attorneys Greg Chaimov and Alan Galloway (of Davis Wright Tremaine), explaining the constitutional flaws in detail. No one else testified against HB 3241.
It should be noted that we do not frequently testify that a legislative proposal is, on its face, unconstitutional. More often than not, we oppose legislation because of the policy at issue or some constitutional concerns. Ultimately the courts decide the constitutionality of any law. Over the years there have been a few circumstances where we believe that the case law is so clear that the proposal would not survive a challenge. HB 3241 was a case where the proposal was so clearly unconstitutional under both the Oregon Free Expression and the federal First Amendment that we had no difficulty stating so in our testimony.
As a result of our testimony and legal opinion, the House General Government and Consumer Protection Committee amended HB 3241 to make it a crime to “disturb” a funeral service. It also provided that funeral directors could obtain a permit to bar persons from being present on public sidewalks and parks within 1,000 feet of a funeral service. We testified against this version, HB 3241 A-Eng., urging the Committee not to pass it because it still suffered from constitutional problems. We provided the Committee with a second legal analysis from our cooperating attorneys.
Not only did we oppose HB 3241 on constitutional grounds, we also opposed it because it fed into the twisted agenda of the Phelps family. Throughout this country, state and local jurisdictions have enacted laws aimed at restricting the Phelps family from demonstrating at funerals. When these types of laws are passed, the Phelps family comes to the jurisdiction that enacted the law to engage in the activity that these laws attempt to prohibit. More often than not, they successfully challenge these laws as unconstitutional. As result, the Phelps’ often recover attorney fees that they then use to support their activities.
It has been more than five years since the Phelps family made an appearance at a funeral in Oregon and while we opposed HB 3241, we shared the proponents’ desire that the Phelps do not come to Oregon. We believed that passage of HB 3241 would not only bring the Phelps to Oregon but would also result in a successful challenge by them of the law, costing the state and its residents not only the pain of having them present but financially through costly litigation.
HB 3241 A-Eng. passed the Oregon House by a vote of 57-3, despite our urging a “No” vote. The three “No” votes were Representatives Mary Nolan (D-Portland), Tina Kotek (D-Portland) (who submitted our floor statement in opposition), and Jules Bailey (D-Portland). We are most appreciative of their willingness to stand up and say no despite the pressure to do otherwise.
HB 3241 A-Eng. moved to the Senate and was assigned to the Senate Judiciary Committee. We believe that if HB 3241 had been assigned to the House Judiciary, it would not have necessarily come to the House floor. Unfortunately, we will never know. Despite significant pressure on the Senate Judiciary Committee, behind the scenes both Republicans and Democrats from both judiciary committees urged the Senate Judiciary not to hear HB 3241 A-Eng. for the very same reasons expressed by the ACLU. Fortunately, HB 3241 A-Eng. was not heard and died in the Senate Judiciary Committee. There is continued interest by some legislators to renew this legislation and we expect a Joint Judiciary Committee hearing on this issue during the interim.
WIN: PASSED HOUSE BUT DIED IN SENATE COMMITTEE
House Vote: 55-3
Scorecard Vote: House