8th Circuit Upholds Nebraska's Funeral Picketing Law

In Phelps-Roper v. Ricketts, (8th Cir., Aug. 11, 2017), the U.S. 8th Circuit Court of Appeals upheld Nebraska's Funeral Picketing Law against both facial and as-applied challenges brought by members of the Westboro Baptist Church.  WBC has historically picketed military funerals-- which its members consider "patriotic hoopola"-- with anti-gay messages and other messages about national policies that WBC considers opposed to Biblical teachings.  The challenged Nebraska law prohibits picketing within 500 feet of a cemetery, mortuary, or church beginning one hour before and ending two hours after the start of a funeral. In upholding the law, the court concluded:

The rights of all speakers, including Phelps-Roper and others at funerals, to publically express their beliefs are protected by the First Amendment—but are not absolute....  Mourners, because of their vulnerable physical and emotional conditions, have a privacy right not to be intruded upon during their time of grief.... NFPL strikes a balance between these competing interests of law-abiding speakers and unwilling listeners in a way that is not facially unconstitutional. We likewise find that Phelps-Roper has failed to demonstrate that the NFPL was applied to her in an unconstitutional manner.

Omaha World-Herald reports on the decision.

8th Circuit: Westboro Church Challenge To Picketing Law Should Be Dismissed As Moot

In 2014, a Missouri federal district court rejected a vagueness challenge mounted by the Westboro Baptist Church to Missouri statutes that banned protest activities within three hundred feet of a funeral. (See prior posting.)  However, while a motion to amend the judgment was still pending, the Missouri legislature repealed the statutes at issue.  In Phelps-Roper v. Koster, (8th Cir., March 4, 2016), the 8th Circuit Court of Appeals held that when the statutes were repealed, the district court should have vacated its judgment and dismissed the case as moot. It also held that the district court had improperly computed the amount of attorneys' fees that should be awarded to plaintiff.

Anti-Westboro Baptist Church Protesters Challenge City Ordinance Used Against Them

In Topeka, Kansas yesterday, Four members of the Journey 4 Justice motorcycle group pleaded not guilty in Topeka Municipal Court to the misdemeanor charge of "picketing of religious events" of the Westboro Baptist Church.  As reported by the Topeka Capital-Journal, the motorcycle group has placed themselves outside the Westboro Baptist Church for several years.  They use an American flag to shield passers-by from Westboro's well-known signs that are virulently anti-gay and which predict the country's doom.  Topeka's Municipal Code Sec. 9-45-140 bans "focused picketing" on the public street, sidewalk or other public space around a house of worship during a worship service or other religious event.  The ordinance defines "focused picketing" to include "walking in a repeated manner past or around a house of worship ... while carrying a banner, placard, or sign."  The motorcyclists want to challenge police interpretation of the ordinance. Police claim that an American flag is a "banner" under the law.  The cyclists also say that Westboro's closed service should not be included as a "worship service" under the law.  Their trial was set for December 7. The cyclists say if the judge agrees with the police, they will move their protest to private property across the street from the church.  Apparently the group is not currently represented by counsel in the case.

Anti-Gay Westboro Baptist Church Pickets Anti-Gay Marriage Kim Davis

In a move that puzzled some observers, four members of the Kansas-based Westboro Baptist Church yesterday picketed near the Rowan County, Kentucky courthouse.  Westboro, known for its virulent anti-gay rhetoric, was protesting Kim Davis, the Kentucky county clerk who has gained notice for her refusal to issue marriage licenses to same-sex couples. According to the Louisville Courier-Journal, a Westboro spokesperson Shirley Phelps-Roper said that Westboro objected to the fact that Davis is divorced and remarried.  Phelps-Roper said:

This woman wants to say that her sin isn’t as grievous as the same-sex marriage sin.  It’s all sin. It’s all awful. But her sin enabled that sin. When you look up, and all the Christians have given over the moral high ground, what voice do they have left?

She also argued that Kim Davis should nevertheless follow the law and issue marriage licenses to same-sex couples, saying: "God hates oath breakers just like he hates adultery and he hates same-sex marriage."

Westboro Baptist Attempt To Intervene In Same-Sex Marriage Case Again Rejected

In Marie v. Moser, (D KA, Dec. 18, 2014), a Kansas federal district court for a second time (see prior posting) refused to allow Westboro Baptist Church to intervene as a party in a lawsuit challenging the Kansas ban on same-sex marriage. The court said that WBC's arguments were based on speculation about future possible claims by same-sex couples.  WBC was allowed to continue to file amicus briefs to assert arguments it would like the court to consider.

Iowa's Flag Desecration and Misuse Laws Invalidated In Suit By Westboro Baptist Church Demonstrators

In Phelps v. Red Oak Police Chief, (SD IA, Dec. 3, 2014), an Iowa federal district court held Iowa's flag desecration and flag misuse statutes unconstitutional on their face because of their overbreadth.  The holding comes in a free expression challenge to the laws by members of the Westboro Baptist Church who regularly picket funerals of soldiers and participate in other protests. Plaintiffs allege that Red Oak police threatened to enforce the statutes against them, leading them to refrain from dragging the flag on the ground and wearing it on their bodies as part of their demonstrations. The court rejected plaintiff's additional argument that the laws infringed her free exercise of religion.

Fred Phelps, Founder of Anti-Gay Westboro Baptist Church, Dies

As reported by CNN, Fred Phelps, Sr., founder of the Topeka, Kansas- based Westboro Baptist Church, died today at age 84.  Members of the church became known for their picketing of funerals of U.S. service members, as well as other events, with signs decrying homosexuality.  Perhaps their most famous sign read "God Hates Fags."  The church claims to have picketed over 53,000 events. It has extended its rhetoric to oppose to many other celebrities and religious groups as well.  Westboro's activity led to anti-funeral picketing laws being enacted at both the federal and state levels, and extensive litigation over some of those laws. It was reported earlier this week that elders in the Westboro Baptist Church had excommunicated Phelps. Wikipedia has more on Phelps' life.

Court Rejects Vagueness Attack On Missouri Funeral Picketing Law

In Phelps-Roper v. Koster, (WD MO, March 10, 2014), a Missouri federal district court rejected a vagueness challenge to a Missouri statute that bans:

picketing or other protest activities within three hundred feet of or about any location at which a funeral is held, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral.

Plaintiff Shirley Phelps-Roper, a member of the Westboro Baptist Church which often pickets funerals with signs opposing homosexuality, argued that the "one hour prior to the commencement of any funeral" provision is unconstitutionally vague because  published funeral times are frequently changed, and the person conducting a funeral may start it early. The court disagreed, saying that hypothetical situations not before the court will not be used to invalidate a statute that is valid in the vast majority of its applications. The court also rejected a vagueness challenge to the statutory provision that triggered the current ban's taking effect.  AP last week reported on the decision.

Meanwhile, the Topeka Capital-Journal this week reported on power shifts within the Westboro Baptist Church. Church founder Fred Phelps Sr., who is seriously ill and has been admitted to a hospice, was excommunicated on recommendation of a board of male elders, apparently because he advocated kinder treatment of fellow church members. Former spokesperson and church attorney Shirley Phelps-Roper has lost influence in the church; its spokesman is now apparently Steve Drain.