Nebraska judge rejects Phelps' flag claim

Associated Press/February 4, 2009

Omaha - A Sarpy County judge has denied Westboro Baptist Church member Shirley Phelps-Roper's claim that Nebraska's flag-desecration law violates her right to free speech.

Judge Todd Hutton ruled Tuesday that prosecutors can proceed with their case against Phelps-Roper. She and fellow members of the Topeka church have protested at military funerals nationwide, claiming that U.S. troop deaths are God's punishment for the nation's tolerance of homosexuality.

Authorities say Phelps-Roper let her 10-year-old son stand on an American flag at the funeral of a National Guardsman in June 2007 in Bellevue, and wore a flag as a skirt that dragged on the ground.

Nebraska's law against flag desecration prohibits intentionally "casting contempt or ridicule" upon a flag by mutilating, defacing, defiling, burning and trampling it. Violating the law carries a misdemeanor charge.

The Nebraska Supreme Court is responsible for deciding whether a law violates the state Constitution, Hutton said. The case remains in a county court, which has limited authority.

Nebraska lawmakers didn't try to change the law after a U.S. Supreme Court case challenged a Texas' flag desecration law some 20 years ago.

"The Nebraska Supreme Court has yet to reconcile the findings" in the U.S. Supreme Court's rulings in the Texas case and other flag cases, Hutton said.

Phelps-Roper's attorney, Bassel El-Kasaby, said he's inclined to appeal now with hopes of eventually having the case heard by the Court of Appeals, or ultimately, the Nebraska Supreme Court.

Sarpy County Attorney Lee Polikov, who's prosecuting the case, called the decision a victory.

"I believe he's absolutely correct that we ought not to be fighting an issue of constitutionality, it's a question of violation of a law, and that's what we intend to do," he said.

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