Michigan’s Funeral Protest Law Struck Down as Unconstitutional

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DETROIT – In a victory for free speech, a federal judge in Michigan yesterday struck down a state statute that makes it illegal to “adversely affect” a funeral. The American Civil Liberties Union of Michigan filed the lawsuit in 2009 on behalf of an army veteran and his late wife who were arrested for taking part in the funeral procession of a friend while displaying signs and bumper stickers on their van that were critical of the Bush Administration.

“Although the statute was designed to keep the controversial Westboro Baptist Church out of Michigan, it was ultimately used to disrupt a peaceful funeral and arrest innocent mourners whose privacy the statute was designed to protect,” said Dan Korobkin, ACLU of Michigan staff attorney. ”Today’s ruling serves as a reminder that innocent people suffer when our legislators pass overly broad laws that give police officers unchecked power to arrest people who express unpopular views.”

Yesterday, U.S. District Judge Thomas L. Ludington struck down the provision of the statute that prohibits conduct that will “adversely affect” a funeral stating that it violated the First Amendment and was unconstitutionally vague. Previously, Judge Ludington had ruled that the right to freedom of speech, the right to due process, and the right against unreasonable searches and seizures should have protected Lewis and Jean Lowden from being arrested and jailed during their friend’s funeral.

“I can never express the shame and humiliation that Jean and I felt when we were forced out of the funeral procession and arrested,” said Lewis, after the case was filed in 2009. “In the end, this lawsuit may bring us justice; however it will never give us back the moment our beloved friend Todd was buried,” said Lewis Lowden. “I only wish Jean lived to see the day we filed this lawsuit.”

For several years, the Lowdens taped homemade signs critical of former President George W. Bush and U.S. policy to the inside windows of their van. In September 2007, Lewis and Jean drove in the funeral procession of their close friend Cpl. Todd Motley, who died in action in Iraq. When they arrived at the memorial service a funeral flag was placed on their van and no one in the family complained about the signs. They drove slowly along the procession route through downtown Harrison.

About 2 miles into the drive, Lewis was asked to pull over by a Clare County Sheriff’s Deputy. The Lowdens told the deputies that they were friends of the family and that they were not protesting the soldier’s death. Nonetheless, Lewis and Jean were arrested for violating Michigan’s funeral protest law and their van was impounded. As a result of the arrest, they missed the burial service. The Lowdens were detained for about 24 hours and Jean, who was suffering from a serious medical condition, found the detention particularly distressing. The criminal charges against the Lowdens were eventually dropped.

To read today’s decision, go to: http://www.aclumich.org/sites/default/files/Lowdendecision.pdf

To read the ACLU complaint, go to: http://www.aclumich.org/sites/default/files/file/lowdencomplaint.pdf

To read this release on our website, go to: http://www.aclumich.org/issues/free-speech/2011-09/1606