Statements on Introduced Bills and Joint Resolutions

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS -- (Senate - September 29, 2006)

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By Mr. DURBIN (for himself, Mr. CHAMBLISS, Mr. Conrad, and Mr. Bayh):

S. 4042. A bill to amend title 18, United States Code, to prohibit disruptions of the funerals of members or former members of the Armed Forces; to the Committee on the Judiciary.

Mr. DURBIN. Mr. President, I rise today to join with my colleagues Senators CHAMBLISS, CONRAD, and BAYH in introducing the Respect for the Funerals of Fallen Heroes Act.

Our bill would make it unlawful to intentionally disrupt the funeral of a U.S. military servicemember or veteran. Sadly, we have seen at least 129 such disruptions over the past 16 months by a group nominally calling itself a Christian church. These disruptions have taken place in almost every State in the country. In Illinois alone, there have been at least 16 disruptions of military funerals during that time--more than any other State.

Most of us know the heartbreak of laying a loved one to rest--a father, a mother, a husband or wife, a grandparent, a brother or sister, a child, a good friend. Funerals are a sad moment of parting, a last opportunity to say farewell.

A loved one is laid to rest only once. And the families and friends of the departed have a clear interest in conducting the funeral ceremony in peace, in tranquility, and in a way they feel best honors the life of the departed and comforts those who are left behind.

It can be devastating to have that funeral disrupted--to have the peace and good order of the ceremony intentionally disturbed by someone you don't even know--during the one chance the mourners have to lay their loved one to rest.

Intentional disruptions of funerals are particularly troubling because mourners at a funeral are a captive audience. They can't just leave. If someone tries to disturb a funeral ceremony by making loud noises or trying to divert the mourners' attention, the mourners can't just move somewhere else. A funeral ceremony is bound to the location of the body of the deceased.

While an intentional disruption of the peace and good order of a funeral ceremony would be inappropriate under any circumstances, it is particularly vile when the intentional disruption occurs during the funeral of a fallen member of the Armed Services.

The United States government owes an obligation to the men and women who have served their country in uniform. These men and women have risked their lives for their country. When they lose their lives, the government has a significant interest in allowing their families and friends to lay them to rest in peace.

In May, Congress enacted legislation called the Respect for America's Fallen Heroes Act, which would safeguard the funerals of U.S. veterans and servicemembers that take place at Federal cemeteries. This law prohibits demonstrations during the military funerals that are held at our 121 national cemeteries and Arlington National Cemetery. It provides protection for the funerals of approximately 90,000 veterans who are buried each year Federal cemeteries.

Our bill would expand the current law to cover the funerals of all servicemembers and veterans, whether they are buried in a national cemetery, in their own local cemetery, or somewhere else. It would provide protection for the funerals of all of the 650,000-700,000 servicemembers and veterans who die each year in the United States.

Admirably, my home State of Illinois and 25 other States have passed laws to try to protect military funerals with their borders. A wide range of State laws have been enacted, providing varying degrees of protection. But many of these laws were not narrowly tailored and are likely to be struck down as unconstitutional. Legal challenges are already underway in several States. What's needed now is a Federal solution.

Under our bill, it would be a criminal misdemeanor--punishable by a fine or up to one year in jail--for any person to 1. make any noise or diversion within the boundary of or within 150 feet of a military funeral location that intentionally disturbs the peace and good order of the funeral, or 2. intentionally impede access to or from the funeral within 300 feet of the funeral location. Such activities would be prohibited during the period from 60 minutes before until 60 minutes after a military funeral.

I understand the critical importance of the right to free speech. It is a foundational right under the U.S. Constitution. However, the Supreme Court has repeatedly found it is consistent with the First Amendment for the time, place, and manner of speech to be reasonably limited in a way that is content neutral and narrowly tailored to serve a significant government interest.

Our bill meets that test. The government has a significant interest in preserving the tranquility and privacy of the funerals of men and women who defend our country as members of the Armed Forces. Congress has the constitutional power to raise and support armies, and we can and should support our troops by providing them with peaceful funerals.

Our bill creates a reasonable time, place, and manner restriction similar to restrictions that the Supreme Court has previously upheld. For example, in a case that took place in my home state of Illinois, Grayned v. City of Rockford, the Supreme Court upheld an ordinance that stated the following: ``(N)o person, while on public or private grounds adjacent to any building in which a school or any class thereof is in session, shall willfully make or assist in the making of any noise or diversion which disturbs or tends to disturb the peace or good order of such school session or class thereof.''

Like the ordinance in Rockford, IL, my legislation is a reasonable restriction on disruptive activities within a limited geographic location for a limited period of time. Just as the local government has a significant interest in protecting the peace and good order of school sessions, the Federal Government has a significant interest in protecting the peace and good order of the funeral ceremonies of our military personnel.

The fact that funeral attendees are a captive audience also figures into the analysis. In many locations, the Supreme Court expects individuals simply to avoid speech they do not want to hear. But in the case Frisby v. Schultz, the Supreme Court upheld an ordinance that made it unlawful to picket outside an individual's residence, stating: ``That we are often `captives' outside the sanctuary of the home and subject to objectionable speech. . . does not mean we must be captives everywhere.'' Like individuals in their homes and students in classrooms, mourners at funeral ceremonies are bound to one location and cannot avoid those who intend to cause disruptions. And they should not be forced to suffer those disruptions, especially during the one chance they have to lay a loved one rest.

The Respect for the Funerals of Fallen Heroes Act is content neutral. Its prohibitions apply to all offenders regardless of the nature of the message or the manner in which the message is conveyed. The legislation simply aims to allow funerals to be conducted in peace.

Our bill is also narrowly tailored. Not every form of speech or activity would be prohibited during the time period, only activities that are intended to and have the effect of disturbing the funeral ceremony. A person could carry on a conversation on a sidewalk nearby or hand out leaflets, but the peace and solemnity of the funeral must not be disturbed.

This bill has been carefully drafted to withstand constitutional scrutiny. We sought the advice of distinguished First Amendment scholar Geoffrey Stone at the University of Chicago law school, and he believes the bill is consistent with the First Amendment.

In addition, it is within the power of Congress to provide protection for the funerals of fallen servicemembers and veterans that are held at non-Federal cemeteries. The Congressional Research Service has researched this issue and concluded that a court would likely deem our legislation to be within Congress's lawmaking power, in light of Congress's constitutional authority to raise and support armies, and in light of cases in which the Supreme Court has upheld Congress's power to regulate private property for the benefit of the military.

Our legislation is supported by veterans groups in Illinois and across America. I received a letter from Retired U.S. Army Colonel Aaron J. Wolff, President of the Illinois Council of Chapters of the Military Officers Association of America, who said: ``The Respect for America's Fallen Heroes Act passed by Congress in May 2006, and signed into law, was an initial step in stopping demonstrations at funerals of our fallen heroes.... On behalf of all veterans and their families, I strongly support your bill to expand coverage of the demonstration ban to include all the funerals of our veterans, wherever they are held.''

Tanna K. Schmidli, chairman of the Board of Governors of the National Military Family Association, wrote to me and said: ``The National Military Family Association supports this legislation to ban demonstrations at all military funerals. Grieving military families, who had made the ultimate sacrifice, should not be subjected to these intrusions. This should be a time for military families to reflect and say goodbye to their loved one and a time for the nation to honor its heroes.''

The men and women who served our country in uniform, and their families and friends, are entitled to funeral ceremonies that can be conducted in peace and without disruption. It's time to protect the funerals of all our fallen heroes. I hope that my colleagues from both parties will cosponsor this bill and join me in seeking to provide the protection they deserve.

Mr. President, I ask unanimous consent that the text of the bill be printed in the RECORD.

There being no objection, the text of the bill was ordered to be printed in the RECORD, as follows:

S. 4042

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