Michigan's Funeral Protest Law Is Unconstitutional, ACLU Says In Federal Lawsuit

April 01, 2009

DETROIT – The American Civil Liberties Union of Michigan filed a federal lawsuit today on behalf of an army veteran and his late wife who were arrested in 2007 for taking part in the funeral procession of a friend while displaying signs in their van that were critical of the President and U.S. policy. The lawsuit was filed against Clare County and two sheriff’s deputies who arrested Lewis and Jean Lowden for violating a 2006 state statute that makes it a felony to “adversely affect” a funeral.

“This case is a textbook example of what happens when Michigan passes laws giving police officers unchecked power to arrest people who express unpopular views," said Michael Steinberg, ACLU of Michigan Legal Director. “Arresting the Lowdens and denying them the ability to attend their friend’s funeral because of the political messages on their van was not only unconstitutional, it was cruel.”

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. However, in September 2007, they were arrested when they drove their van with these signs in the funeral procession of their close friend, Corporal Todd Motley, who was killed in action in Iraq. The Lowdens were friends of Cpl. Motley’s family for 15 years; in fact, Jean homeschooled Cpl. Motley in high school and Lewis regularly took him camping and fishing.

After Cpl. Motley was killed, his family invited the Lowdens to drive in his funeral procession. 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. The funeral was a widely publicized event with hundreds of onlookers lining the streets to pay their respects to Cpl. Motley. Many waved American flags and displayed signs thanking Cpl. Motley for his service to our country.

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.

“I can never express the shame and humiliation that Jean and I felt when we were forced out of the funeral procession and arrested. 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.”
The ACLU is asking the court to strike down Michigan's funeral protest law because it violates the First Amendment and is unconstitutionally vague.

In addition to Steinberg, the Lowdens are represented by Cynthia Heenan and Hugh Davis of Constitutional Litigation Associates and Daniel Korobkin of the ACLU.

To read the ACLU’s complaint, click here