THE Constitution is a hard mistress. Those who love it must obey its toughest commands, as they are embodied in the First Amendment, which upholds the rights to free speech and the free exercise of religion.
Most of the time, tolerance is easy. But it's not the easy issues that most need the Constitution's protection.
An issue doesn't get any harder, or the demand for tolerance more strained, than the case of Snyder vs. Phelps, which was the focus of oral argument in the U.S. Supreme Court last week. The justices seemed perplexed and divided, and they should have been. Here was free speech and the free exercise of religion as something shocking and grotesque.
A crackpot religious group - the Westboro Baptist Church of Topeka, Kansas, headed by pastor Fred Phelps - has taken to protesting at military funerals to advance its hateful theory that God is punishing America for its acceptance of homosexuality. This makes no sense, of course; military casualties in today's wars are much lower than during the world wars and the conflicts in Korea and Vietnam, when society routinely condemned homosexuality.
But the Constitution does not empower government to decide what is legitimate in religious belief, or to censor anybody who chooses to preach a gospel of hate. So in 2006, when the family of 20-year-old Marine Lance Cpl. Matthew Snyder held a funeral service for him after his death in Iraq, members of the Topeka church turned up with such signs as: "You are going to Hell," "God hates you," and "Thank God for dead soldiers."
The only blessing in this vile display was that the protesters were kept 1,000 feet away - more than the length of three football fields - at a site approved by the police. The father of the dead marine, Albert Snyder of York, Pa., saw the protest only on TV news that night.
Mr. Snyder sued for intentional infliction of emotional distress and won a $5 million award. An appellate court threw that judgment out.
Every decent impulse of the heart wants the elder Mr. Snyder to prevail. But the head can't forget that infliction of emotional distress can be the most slippery of slopes.
The late Rev. Jerry Falwell also gained public sympathy in his suit against the indecent attacks of Hustler magazine. The Supreme Court did the First Amendment a huge favor by unanimously deciding that a public figure couldn't win damages for emotional distress.
Mr. Snyder is a private individual entitled to his private grief. But to what extent, the court must determine, was his son's funeral public?
If the justices can come up with some narrow distinction that doesn't damage the First Amendment, the head and heart will rejoice. But there's an old adage that hard cases make bad law. That warning looms large in this horrible case.
In the end, the Constitution must still protect unpopular speech. This case can't turn into a funeral for the First Amendment.