Would lack of response to gay pickets help legal challenge?

Let me start by pointing out this is somewhat un-researched – and possibly wrong. Still, I think it’s an interesting question.

The ACLU is suing to strike the KY anti-funeral-picketing law on behalf of a member of the Westborough church. I haven’t been able to find the brief on line, but from the news reports, it seems clear that the ACLU will argue the law is unconstitutional because its vague and/or over broad. That’s not the interesting part, per se.

It’s also possible they will argue, in the alternative, that it’s an unconstitutional restriction of speech. Now, the state will likely argue that the restriction is a content neutral time, place or manner restriction. So, the law would be judged with intermediate scrutiny.

My question is, will the fact that the state didn’t take action until it was military funerals being picketed lend to an argument that the law is not content neutral? Sure, as written, the law seems content neutral. However, I’m guessing the Westborough folks have protested against at least a few gay funerals in Kentucky. Since there was no legislative outcry and, certainly, no law in response – wouldn’t that suggest the law was designed not to protect all funerals, rather just the military ones? Wouldn’t that make it content specific, and thus subject to more stringent review?

As I said, I have no idea what they have actually argued, and there is probably case law which I don’t currently have time to review which speaks more closely to the issue. I still find it to be an interesting question.