Westboro Baptist Church dealt setback as court upholds funeral protest ban

The Kansas City StarOctober 17, 2012 

A federal appeals court dealt a rare legal setback to the Westboro Baptist Church on Tuesday, finding that a Missouri town’s funeral picketing ordinance is constitutional.

Ruling in favor of Manchester, Mo., 11 members of 8th U.S. Circuit Court of Appeals found that the city’s ordinance barring protests at funerals met constitutional muster because it was narrowly written and offered picketers ample opportunities to express their views in other ways.

Patrick R. Gunn, Manchester’s city attorney, said lawyers were pleased “and maybe a bit surprised, given the history of this litigation.”

Judges “weighed the benefits of the First Amendment and the rights of families who were grieving the loss of family members who were, for the most part, members of the military,” Gunn said.

Members of the Topeka-based church often picket at service members’ funerals, saying that their deaths are an expression of God’s wrath at America for tolerating homosexuality.

The church and Shirley L. Phelps-Roper, the daughter of church founder Fred Phelps, achieved a string of impressive legal successes before this. They’ve repeatedly had funeral picketing laws in Missouri found unconstitutional over free-speech concerns.

Last year, the U.S. Supreme Court ruled that the First Amendment protected the church from a lawsuit seeking damages for intentional infliction of emotional distress at a soldier’s funeral in 2006.

Manchester’s ordinance, which requires protesters to stay at least 300 feet from a funeral home, cemetery or house of worship during the service and for an hour before and after, was modeled on an Ohio law that a different appeals court found constitutional in 2008.

Phelps-Roper could not be reached for comment Tuesday. Her lawyer, however, said the appeals court has essentially carved out a new funeral exception to the First Amendment. Previously, the Supreme Court has said that barring protests outside of residences and some abortion clinics does not impinge on free-speech rights.

Anthony E. Rothert of the American Civil Liberties Union of Eastern Missouri said lawyers are considering an appeal.

The full 8th Circuit’s ruling also reversed its own three-judge panel, which earlier had found Manchester’s ordinance unconstitutional. Interestingly, no members of that panel dissented in Tuesday’s ruling.

“It just may be that they were persuaded by their colleagues that the decision was appropriate,” said Carl Tobias, a law professor at the University of Richmond in Virginia.

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