Funeral Protest May Resume

Ruling could clear way for resumption of funeral protests
By MARK MORRIS
The Kansas City Star
A Topeka church could soon resume picketing at soldiers’ funerals in Missouri because of a federal appeals court ruling Thursday.

A three-judge panel ruled that a Kansas City judge erred last year when he refused to give the Westboro Baptist Church a preliminary injunction while considering whether two Missouri laws banning funeral pickets were unconstitutional.

Writing for the panel, Circuit Judge Kermit E. Bye stressed that the appeals court was not ruling on the laws’ constitutionality. However, Bye said that because the church had shown a “fair” chance of ultimately winning, it deserved a preliminary injunction barring the state from enforcing the laws while litigation continued.

“The injunction will not cause substantial harm to others, and the public is served by the preservation of constitutional rights,” Bye wrote.

Church members have complained that the Missouri laws violate their freedom of speech as guaranteed by the First Amendment. Shirley Phelps-Roper, daughter of church founder Fred Phelps, filed the suit and said Thursday that she was “thrilled” with the ruling.

“We see here that there is someone left in this country with their constitutional head on straight,” Phelps-Roper said.

Missouri Attorney General Jay Nixon announced plans to appeal to the full 8th Circuit Court of Appeals.

“Missouri has the right to protect the families of our fallen military members from these intrusive and disgusting protests,” Nixon said in a written statement.

Westboro church members believe that God is punishing America for tolerating homosexuality, abortion, divorce and other issues, Phelps-Roper said.

They have drawn scorn across the country for pickets at the funerals of servicemen and servicewomen. Jurisdictions in more than 40 states have enacted funeral picketing bans. And earlier this year a Maryland jury ordered Westboro to pay nearly $11 million to the father of a fallen soldier whose funeral was picketed. The church has said it does not have the money and is appealing.

Should U.S. District Judge Fernando Gaitan issue the preliminary injunction, the church would resume picketing in Missouri, Phelps-Roper said.

“We’ve been avoiding the Missouri ones (funerals), but now we have to retool and get that back on the landscape,” Phelps-Roper said.

A schedule of pickets posted on the church’s Web site shows events this week in Minnesota, Nebraska, Illinois, Wisconsin and Indiana.

Missouri enacted its laws after Phelps-Roper and other church members picketed the August 2005 funeral of a soldier in St. Joseph. The laws bar protests one hour before a funeral starts until one hour after it ends. Protests are also barred within 300 feet of funerals.

In declining to give Phelps-Roper an injunction, Gaitan wrote in January that he agreed with state lawyers that “Missouri’s interest in providing safe, secure and dignified funerals to its citizens far outweighs any interest the (church) has in protesting and disparaging such events.”

The U.S. Supreme Court has not addressed the issue of whether the state has an interest in protecting both the dignity of funeral services and the privacy of family and friends during a time of mourning.

In 1999, the 8th Circuit threw out an Omaha, Neb., ordinance that barred anti-abortion demonstrators from protesting at a church that had appointed a physician who performed abortions to the posts of deacon and elder.

Bye wrote that because of that precedent, “we conclude Phelps-Roper has a fair chance of proving any interest the state has in protecting funeral mourners from unwanted speech is outweighed by the First Amendment right to free speech.”

Not even Phelps’ opponents agree on whether the desire for a respectful funeral atmosphere should trump free speech.

“I think most people in the (Patriot) Guard agree with me that, as despicable as his group is, we believe in our First Amendment rights,” said Deems Peterson of Lenexa, an assistant state captain of the organization’s Kansas branch. “To decide what is agreeable speech and what is disagreeable speech is not the flavor or the meaning of the First Amendment.”

The Patriot Guard, a 64,000-strong nationwide group, was formed in 2005 in response to protests at a Kansas funeral of a soldier who had died in Iraq. Volunteers on motorcycles and in vehicle convoys hold up U.S. flags at funerals to counter Phelps’ protests.



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INSIDE
Kansas justices hear arguments on a law restricting protests at military services. | B4



The Star’s Lee Hill Kavanaugh and Tim Hoover contributed to this report. To reach Mark Morris, call 816-234-4310 or send e-mail to mmorris@kcstar. com.