Antigay church can protest military funerals, judge rules

A federal judge has struck down as unconstitutional a Missouri law aimed at preventing members of a Kansas-based religious group from conducting inflammatory protests outside the funerals of fallen US service members.

Chief US District Judge Fernando Gaitan said the state statute violated free speech protections guaranteed in the First Amendment by imposing excessive restrictions on the ability to conduct protests outside funerals. The judge, who is based in Kansas City, Mo., also ruled that the controversial protests did not amount to “fighting words,” which are unprotected by the Constitution and can be banned.

“Although plaintiff’s speech may be repugnant to listeners, the court finds that, at a minimum, some of plaintiff’s speech is entitled to constitutional protection,” Judge Gaitan said in a 19-page decision announced Monday.

The plaintiff in the case was Shirley Phelps-Roper, a member of Westboro Baptist Church in Topeka, Kan. The group has attracted national attention by using military funerals to stage protests to spread its message that God hates America for its tolerance of homosexuality.

Church members arrive at military funerals with signs that declare: “God Hates Fags,” “Thank God for Dead Soldiers,” and “9-11: Gift from God.” The group believes that God is punishing the US – and allowing US soldiers to die in combat overseas – because of the country’s growing acceptance of gay rights.

The protests are conducted at military funerals regardless of the sexual orientation of the service member. They have provoked angry reactions from family members, friends, and members of the public.

In August 2005, the group picketed the funeral of Spc. Edward Lee Myers in St. Joseph, Mo. State politicians responded by passing a law that banned “picketing or other protest activities in front of or about any location at which a funeral is held.”

Anticipating a legal challenge to the statute, the lawmakers passed a fallback statute. The fallback statute was written to become effective if the original funeral protest law was declared unconstitutional. Instead of a free-floating no-protest zone, the contingent law banned funeral protests within 300 feet of a funeral.

Gaitan struck down both provisions. He said both statutes fail to advance a significant government interest and are not tailored narrowly enough to comply with free speech protections.

The judge’s decision suggests that he made the ruling reluctantly.

The judge noted that he had earlier decided that the statute advanced a significant state interest in “preserving and protecting the dignity of funeral services, as well as protecting the privacy of family and friends of the deceased during a time of mourning.” But the Eighth US Circuit Court of Appeals overturned Gaitan’s finding.

Instead, the appeals court said the government had no compelling interest in protecting individuals from potentially offensive protest speech near funerals.

“Although this court is sympathetic to [the state’s] argument that attendees at a funeral are a captive audience and are deserving of some level of protection, the court finds that the Eighth Circuit’s opinion… controls.”

Gaitan noted that the US Supreme Court has agreed to hear a similar case involving a Westboro protest at a service member’s funeral in Maryland. The high court case, Snyder v. Phelps, is set for oral argument on Oct. 6.