Kansas ban on funeral protests overturned by court

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.

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.

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