"In our nation, as in nearly every culture and religious tradition, proper burials play a crucial role in helping the bereaved mourn the dead," declare 42 politically opposed Senators, like Harry Reid, Mitch McConnell and Al Franken. "The disruption of a funeral interferes with the necessary emotional process of grieving, and thus can inflict severe psychological and even physical distress on the bereaved. In recognition of the vulnerability of mourners, American courts have long recognized a 'right' to a decent burial."
As proof of this legal note, the Senators point out that Congress, as well as 42 states, have already enacted laws denoting which times and places people can demonstrate outside of funerals. These laws are not, they insist, contradictory to the principle of free speech.
So here we have two complex concepts: the First Amendment and the "necessary emotional process" that comes with death. The former concept is distinctly Democratic, while the latter more collective in nature, and far more inevitable.
Everyone, regardless of their ideologies and voting record, will die, and we will all mourn someone who has died. Which concept, then, is more worthy of being protected: the right to say outrageous things or the "right" to mourn someone in private? Does death, ever-worthy of respect, warrant a "no free speech zone," however temporary? Justice Ruth Bader Ginsburg today wondered aloud whether the First Amendment would tolerate the Church "exploiting this bereaved family."
Though the Westboro case, like Stephen Colbert's Congressional testimony, should be cheered as an example of democracy and civic discourse in action, the essential, elementary question cannot be ignored: Are laws created to sustain man or to constrain him? Are they a civilizing force, or an organic outgrowth of the general will? Do we have laws because we're naturally social creatures or because man's naturally ill-tempered and violent?
A recent study suggests that early man was indeed kindhearted. Does that mean our society, with its scores of fundamentalists and wing-nuts, went wrong somewhere?