Court Calls For Review Of Ban On Funeral Protests

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ST. LOUIS – The American Civil Liberties Union of Eastern Missouri welcomed a decision today preserving the constitutional protection of unpopular speech. The United States Court of Appeals for the Eighth Circuit found in favor of Shirley L. Phelps-Roper, a member of the Westboro Baptist Church (WBC), in a case challenging a Missouri law that stripped her of her constitutional rights to free speech and religious liberty by banning protests at funerals. The court’s decision in Phelps-Roper v. Nixon reverses an earlier decision that denied Phelps-Roper’s request for a preliminary injunction while the constitutionality of the law is reviewed.

“There will always be speech that is distasteful to some, and that is exactly why the First Amendment protects free speech for all,” said ACLU of Eastern Missouri Executive Director Brenda Jones. “Many people may find the views expressed at the funeral protests un-American and disrespectful to the men and women who have served and died for their country.  But there is nothing American about taking away the right to protest.  Freedom of speech is at the very core of the American values.”

Phelps-Roper is a member of the Westboro Baptist Church, which follows primitive Baptist and Calvinist doctrine. Its members believe that homosexuality is a sin and that God is punishing America by killing Americans, including American soldiers. They protest at the funerals of soldiers in order to spread their message.

On August 5, 2005, Phelps-Roper and other members of the WBC held a protest near the funeral of Army Spc. Edward Lee Myers in St. Joseph, Missouri. In direct response to the WBC protest, the Missouri legislature enacted a new law intended to prevent members of the WBC from holding their protests. The law makes it a crime to protest or picket one hour before or one hour after a funeral and “in front of or about a funeral,” and defines funeral as “the ceremonies, processions and memorial services held in connection with the burial or cremation of the dead.” The ACLU filed a lawsuit on behalf of Phelps-Roper in July of 2006.

“The ACLU disagrees with the message that tolerance of gay people has corrupted America. In fact, we work every day to protect and advance the rights of gay people because the Constitution guarantees equal protection under the law for all people,” said ACLU of Eastern Missouri Legal Director Anthony Rothert.  “That is exactly why the free speech rights of the Westboro Baptist Church must be protected.  We cannot pick and choose who is protected by the Constitution.” 

Because of the vague terms of the law, it has been interpreted differently in cities across the state.  Some officials have gone so far as to interpret the law to apply to private citizens speaking at a funeral, regardless of their message.  And in some counties, groups with opposing views have been allowed to protest while Phelps-Roper and the members of the WBC have been threatened with arrest.

In finding in favor of Phelps-Roper, the court wrote, “we find she will suffer irreparable injury if the preliminary injunction is not issued.  The injunction will not cause substantial harm to others, and the public is served by the preservation of constitutional rights.”

Benicia Livorsi is cooperating attorney with the ACLU.