Kansas ban on funeral protests gets blocked

Kansas City Star/March 11, 2008

Topeka - Kansas lawmakers must try yet again to pass a law prohibiting funeral protests, now that the state's Supreme Court has ruled it cannot be enforced.

The decision leaves last year's funeral picketing ban in legal limbo: It remains on the books, but cannot be enforced until the Legislature takes action.

Lawmakers will waste little time, said Senate Majority Leader Derek Schmidt.

"It was a good try. It didn't work," said Schmidt, an Independence Republican. "Now we'll need to go back and fix it."

In fact, a House committee introduced a bill Tuesday that would do just that.

Like those passed in Missouri and at least 35 other states, the Kansas protest ban was written to rein in the activities of Topeka's Westboro Baptist Church, which is headed by Fred Phelps.

Members of the church protest funerals of fallen soldiers and others across the country, saying their deaths are divine retribution for U.S. tolerance of homosexuality.

What doomed the law was an effort to protect the ban from a potential Westboro legal challenge.

When lawmakers unanimously passed the ban, they inserted a so-called "trigger" provision requiring the attorney general to ask for the Supreme Court's opinion before the ban could take effect. The trigger helped persuade lawmakers, who worried that the state would end up paying the church's legal fees if church members challenged the law and won.

But the court ruled that the trigger itself was unconstitutional, violating the separation of powers by making the court a type of advisory panel to the Legislature.

Saying it didn't want to interfere with a legislative action, the court refused to separate the trigger from the rest of the law, meaning the law can't be enacted or enforced.

The court also noted that it can't weigh in on a law that isn't yet in effect. "The issue must return to the Legislature," the 54-page ruling said.

That's bad news to Brandy Sacco.

The Topeka woman's husband, Army Sgt. Dominic Sacco, was killed in Iraq. Westboro protested his 2005 funeral, carrying signs saying that soldiers were doomed to hell.

She testified in favor of funeral protest restrictions in 2006 and again in 2007 and was present when Gov. Kathleen Sebelius signed the ban into law last year.

"I'm pretty frustrated," she said Tuesday. "So many other states that already have laws on the books, and Kansas is so afraid of the Phelpses they can't do anything. It's not that hard to copy another state's law."

The law would have banned protests within 150 feet of a funeral for one hour before and two hours after a service. Violators would face fines and even jail time.

Another provision, already in effect and not affected by Tuesday's ruling, allows family members to sue protesters who violate the ban for defamation.

Shirley Phelps-Roper, a Westboro leader and a lawyer, said she was pleased by the court's decision. She said the court cannot allow itself to become an advisory panel to the Legislature.

She urged lawmakers not to revisit the issue, noting that the church always holds its protests more than 150 feet from funerals anyway.

"They need to stop climbing on our backs to make political hay," she said.

The court released the decision early to give lawmakers time to act before the current legislative session ends in May.

Schmidt said he believes the Legislature would need only to remove the trigger and the law could go into effect. The tweak should have strong support, he said.

Lawmakers tried to pass a ban in 2006 but failed because many legislators preferred no ban to a weak one designed to avoid lawsuits. In 2007, they came up with the novel trigger maneuver, and the ban passed unanimously.

Phelps-Roper said continual legislative failures to pass a workable ban in Kansas are "embarrassing all of us in the state."

Asked for a response, Schmidt threw back his head and laughed. "You can report loud peals of laughter as I considered the irony of that statement," he said.

Westboro is challenging a $5 million award given to a Pennsylvania man who successfully sued the church for invasion of privacy after members protested the funeral of his son, a Marine.

A jury initially suggested an $11 million verdict, but a judge later reduced it.

The church is also embroiled in a federal court case in Missouri.

In December, an 8th U.S. Circuit Court of Appeals panel ruled that a lower court judge should have blocked Missouri's restrictions while they were being challenged. The state appealed that ruling, and the courts have yet to weigh in on the actual restrictions.

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