KANSAS CITY, Mo. -- A federal appeals court agreed Wednesday to take another look at whether a St. Louis suburb can enforce a funeral protest ordinance drafted in response to the picketing of an anti-gay Kansas church – a move that could push the issue closer to the U.S. Supreme Court.
The full 8th U.S. Circuit Court of Appeals in St. Louis will meet Jan. 9 to reconsider a three-judge panel's October ruling in favor of members of Westboro Baptist Church of Topeka, Kan. In the now-vacated ruling, the panel upheld a district court ruling, saying peaceful protests near funerals are protected by the First Amendment's right to free speech.
Tony Rothert, an attorney for the American Civil Liberties Union, which represented Westboro members Shirley and Megan Phelps-Roper, said the decision to rehear the case wasn't surprising given that the circuit courts have been divided over the constitutionality of the funeral protest laws that have been cropping up since Westboro members began protesting at military funerals. The members often hold signs containing such messages as, "Thank God for dead soldiers" and "Thank God for 9/11." Church members claim the deaths are God's punishment for American immorality and tolerance of homosexuality and abortion.
Last year, a federal judge in Kansas City, Mo., struck down Missouri's funeral protest statute as unconstitutional and an appeal has been filed to the 8th Circuit. A ruling in the 6th Circuit in Ohio favored the protest laws.
Earlier this year, the U.S. Supreme Court ruled 8-1 in favor of Westboro Baptist Church in a lawsuit filed by Albert Snyder, the father of a fallen Marine who sued the church for the emotional pain they caused by showing up at his son Matthew's funeral. However, the Supreme Court didn't specifically address the funeral protest laws.
The suburb of Manchester adopted its ordinance banning peaceful funeral protests in 2007. The 8th Circuit panel's October ruling meant Manchester could no longer enforce the ordinance and stalled a Nebraska funeral-picketing law. The 8th Circuit panel found a district court should have blocked the Nebraska funeral picketing law from being enforced.
Unless the full 8th Circuit reaches a different conclusion than the three-judge panel and sides with the 6th Circuit, the issue could be headed back to the Supreme Court, Rothert said. He said the Supreme Court rehears cases when there are splits in circuits or questions of exceptional importance.
"This revolves around the First Amendment, so both sides argue that this is a case of exceptional importance," he said."We continue to believe the families of fallen soldiers should be protected from the hateful protests of Westboro Baptist Church members – they deserve to grieve in peace," he said.