8th US Circuit of Appeals opinion strikes down Nebraska's restrictions on funeral pickets

Associated Press/October 20, 2011

OMAHA, Neb. — A federal appeals court struck down a Nebraska law on Thursday that keeps protesters several hundred feet away from a funeral or memorial service.

A three-judge panel of the 8th U.S. Circuit Court of Appeals reversed a ruling by a lower federal court against members of Westboro Baptist Church, relying on its 2008 ruling in a Missouri case that said peaceful protests near funerals are protected by the First Amendment's right to free speech.

Thursday's opinion came in an appeal of a lawsuit filed by Shirley Phelps-Roper, the daughter of the founder of the Topeka, Kan.-based group that regularly protests at the funerals of fallen soldiers. Phelps-Roper had asked for a preliminary injunction to stop enforcement of the law, saying it was unconstitutional.

The Nebraska Attorney General's Office said it will ask for the full 8th Circuit to review the case.

"This is a fool's errand that they're on, and they'll bankrupt the state in the process," said Margie Phelps-Roper, also a lawyer and another daughter of Westboro pastor Fred Phelps. "We go to public right-of-ways in the midst of public discussions and have a dissenting view. That's supposed to be the essence of what makes this nation unique — that a little church in the middle of the nation can go to public street in the midst of a public debate and have a wildly unpopular, dissenting view."

Members of the church believe U.S. troop deaths are punishment for the nation's tolerance of homosexuality. The lawsuit followed Phelps-Roper's arrest during a 2007 protest at the funeral of a National Guardsman in Bellevue. Authorities said she let her then-10-year-old son stand on an American flag and that she wore a flag as a skirt that dragged on the ground.

Charges against her were dropped in exchange for Phelps-Roper dismissing all her state and federal lawsuits against Sarpy County authorities. But her lawsuit against state and Bellevue officials remains active. When Phelps-Roper filed the lawsuit, Nebraska's law prohibited picketing within 300 feet of a funeral or memorial service. Lawmakers have since passed a measure that requires picketers to stay at least 500 feet away from funerals.

The appeals court reversed the earlier ruling by U.S. District Court Judge Laurie Smith Camp, who had said that the Nebraska funeral picketing law protects family members attending services, while leaving ample alternatives for Phelps-Roper's protests that are protected by the First Amendment. The judge had also said Phelps-Roper had not demonstrated she would likely prevail in her challenge to the state law, but recent rulings have proved otherwise.

Shirley Phelps-Roper said the issue behind the case has been "crystal clear from the beginning."

"We have the right and the duty to stand on these streets and warn the nation whose destruction is upon them to stop sinning and God will stop killing your children," Phelps Roper said. "This is not a surprise to us and we're thankful. The Lord our God gave this nation the gift called the First Amendment and we love it."

Thursday's opinion was the latest in a line of court rulings that have often favored Westboro Baptist Church. In 2008, a three-judge panel of the 8th U.S. Circuit Court of Appeals ruled that church members could picket soldiers' funerals in Missouri. Earlier this year, the U.S. Supreme Court ruled 8-1 in favor of Westboro Baptist in a lawsuit filed by Albert Snyder, the father of a fallen Marine who sued the church for the emotional pain they caused by showing up at his son Matthew's funeral.

In Thursday's opinion, the three appeals judges gave the impression of holding their noses in finding in favor of Westboro, with each saying the previous 8th Circuit panel opinion in the Missouri case left them no choice but the reverse the lower court's ruling in Nebraska. But federal Judges C. Arlen Beam, Steven Colloton and Diana E. Murphy said in Thursday's opinion that they questioned the judgment of the previous 8th Circuit decision and urged the full 8th Circuit to rehear the Missouri case.

Margie Phelps-Roper said she has no doubt that the case will reach the U.S. Supreme Court, and that Westboro will prevail.

"That's going to be a whole lot of egg on an whole lot of attorney general face for why they spent thousands of dollars pushing for something they knew wasn't right, and changed nothing," she said.

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