Procedural formalism and ending up in the same place

Last month, I wrote about the decision of the Kansas Supreme Court striking down, on justiciability grounds, the state's statutory ban on picketing at and near funerals, a law targeting the activities of the Westboro Baptist Church. The first law, although enacted, provided that it would not become enforceable until the state supreme court or a federal district court ruled as to its constitutionality. The Kansas Supreme Court held this violated state and federal separation-of-powers dockets, mainly because it would have required an advisory opinion.

Last week, the governor signed a new law, re-enacting the same substantive provisions, without the judicial trigger. The law becomes effective and immediately enforceable this Thursday, April 10. If it so chose, the Church or its members could file suit that same day (no indication of whether they intend to do so) and challenge the law on First Amendment grounds. And given some potential First Amendment problems with the restriction, they likely could gain at least a temporary restraining order, if not a preliminary injunction, against enforcement of the law. In other words, by the end of the day Thursday, the law might be on the books, but not enforceable until the courts finally decide its constitutionality. In other words, exactly where we were under the original law.

A frequent question in procedure classes is why this matters and why we have to go through these hoops to get to the same place (which, I said previously, is why the legislature tried the judicial trigger in the first place). And telling them about concreteness and adversariness and the need for courts to resolve only "cases and controversies" only gets us so far. At least that is so in a case such as this one--a law that affects the rights of only a very small, all-but-identified-by-name group and its narrow, otherwise-infrequent conduct. It is not clear that any ultimate, Church-initiated pre-enforcement litigation will look that different, in terms of adversariness or concreteness, than the state-initiated action sought by the original law.