Court supports church's stay on Mo. funeral picketing law

Saturday, December 8, 2007

KANSAS CITY, Mo. -- A federal appeals court said Thursday that a Missouri state law limiting protests near funerals should have been put on hold while a judge determines whether it's constitutional.

The 8th U.S. Circuit Court of Appeals in St. Louis threw out a district court judge's decision denying the request for a temporary injunction of the law from a Kansas church that regularly protests at soldiers' funerals.

Missouri legislators passed the law last year in response to pickets of soldiers' funerals by members of Westboro Baptist Church. The Topeka, Kan., church claims God allows soldiers to be killed as punishment on the nation for tolerating homosexuality.

Church member Shirley Phelps-Roper filed suit in July 2006, seeking to have the statute declared an unconstitutional infringement on her First Amendment right of free speech. She also sought preliminary and permanent injunctions barring Attorney General Jay Nixon and Gov. Matt Blunt from enforcing the law.

U.S. District Judge Fernando Gaitan said Phelps-Roper had failed to show that she had a strong probability of winning the overall lawsuit and that she would be irreparably harmed if the protest ban continues to be enforced.

He also said that while the law imposes a buffer of time and space between Phelps-Roper and funeral mourners, she has not been completely deprived of public venues for trying to persuade Americans of a connection between soldiers' deaths and homosexuality.

Missouri's law bans picketing and protests "in front of or about" any location where a funeral is held from an hour before the funeral begins until an hour after it ends. Several other states and the federal government have adopted similar restrictions in response to the protests by members of Phelps-Roper's church.

The appeals court, which also repeatedly said it wasn't ruling on the Missouri law's constitutionality, said Phelps-Roper had raised enough questions about the law to make an injunction necessary.

For example, it noted past rulings saying the government had no compelling interest in protecting individuals from unwanted speech outside their homes and that the law appeared to create "floating" buffer zones, which didn't adequately explain to protesters when and where they could protest.

The three-judge panel also disagreed that the law didn't necessarily deprive the protesters of a venue for their opinions.

"Phelps-Roper presents a viable argument that those who protest or picket at or near a military funeral wish to reach an audience which can only be addressed at such occasion and to convey to and through such an audience a particular message," the court wrote.

The case would head back to the district court, although Nixon said in a written statement that he will appeal the panel's decision and ask the full appeals court to rehear the case.

"I will take every legal step necessary to see that this law is upheld," Nixon said. "Missouri has the right to protect the families of our fallen military members from these intrusive and disgusting protests."

Phelps-Roper, on the other hand, called the panel's decision "awesome."

"It shows you that it doesn't matter how many soldiers we have on foreign soil fighting for our rights that if we don't have some people on our own soil fighting, we don't have a First Amendment," she said. "When you see your organic law eroding, history tells you that your destruction is on the way."

Meanwhile, the Kansas Supreme Court was asked Thursday to strike down a section of that state's funeral picketing law. State Solicitor General Stephen McAllister told the justices that a requirement that the law first be declared constitutional by a federal or state court before it could be enforced was an illegal obstacle.

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