Phelps-Roper (Roper) is a member of the Westboro Baptist Church that believes that God is punishing America by killing American soldiers for what her Church considers the sin of homosexuality. As part of her religious duties Roper believes funerals are the only place where her religious message can be delivered in a timely and relevant manner leading her to picket soldiers funerals with statements such as: “Thank God for dead soldiers”; “Thank God for 911”; and inflammatory anti-gay statements. Of course, these outrageous statements are intended to rile up citizens and legislatures thus feeding the controversy.  There has been no lack of takers since at least 40 states have passed legislation as well as many communities.

These protests are not limited to just deceased soldiers, but also include almost any funeral if there is an opportunity to get media attention.  In the face of a protest by Roper and her Church at the funeral of a nine-year old that died during the attempted assassination attempt of Representative Gifford, Arizona unanimously passed emergency legislation limiting the right of protests at funerals. Of course, when the goal is shock, awe, and disbelief it makes no difference if the deceased is a veteran or a nine-year-old child who was an innocent bystander at a massacre.

In response to picketing by Roper and church members at the funerals of soldiers, Missouri passed legislation in 2006 criminalizing the picketing, “in front of or about” a funeral location or procession one hour before or after a funeral or in the event the one hour limitation is declared unconstitutional, within 300 feet of the funeral location or procession. Roper sued the State of Missouri in Federal District Court, requesting an injunction to prevent the State from enforcing the law.  The Federal District Court in Missouri initially denied Roper’s request for an injunction, which was reversed by the 8^th Circuit on the grounds that Roper’s would likely succeed in her claim that the law violated her rights to free speech under the First Amendment Free Speech Clause. Phelps-Roper v. Nixon, (8th Cir. No. 07-1295, 10/31/08). In September of 2010 a Federal District Court in Missouri granted the injunction requested by Roper, and the State has appealed this decision to the 8^th Circuit.

The prospects for a successful outcome of Missouri’s funeral protest law is pretty bleak, short of the United States Supreme Court writing a new page in its Free Speech jurisprudence. After all the 8^th Circuit has already shown its hand when it decided the initial appeal in Roper v. Nixon in 2008 by stating that it was likely that Roper would ultimately succeed in getting the Missouri law overturned. The City of St Joseph, Missouri adopted an ordinance similar to the state law and was sued by Roper who claimed that the ordinance violated her right of free speech. St. Joseph has now repealed its ordinance. Other cities in Missouri that have funeral procession laws may have to make similar decisions. The City of St. Charles and St. Charles County were recently sued by the Westboro Baptist Church.

Still there may be some hope. A jury returned a multi-million dollar verdict against the Roper that was set aside by the Court of Appeals, on the grounds that awarding damages for their picketing activities violated their First Amendment right of free speech.  The United States Supreme Court has heard arguments in this case, which  involves a civil lawsuit  against Roper

and Church members based a claim for intrusion upon seclusion, intentional infliction of emotional distress and civil conspiracy. With respect to the validity of funeral procession ordinances there is also a split in the Court of Appeals, which makes it likely that the United States Supreme Court will someday have to resolve the conflict.

In my MMAA newsletter in 2008 I noted it is hard to imagine a more personal matter than a funeral where friends and loved ones gather to mourn, honor, and lay to rest a friend or relative. In this moment of personal grief or solace there needs to be a sense of personal privacy and respect. It is in this context that I retain some optimism that the Supreme Court will recognize a right to either sue for damages or extend the analysis adopted by the Supreme Court that limits the right to picket in front of a home.

Does it make sense to pass an ordinance at this time considering the likely outcome an injunction keeping the city from enforcing the ordinance, attorney fees assessed against the city and time and effort of city staff?  Until the United States Supreme Court provides some answers city officials may be well advised to conserve valuable city resources.

The information provided in this Post is not intended to constitute legal advice. (©) 2011 Howard Wright