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UPDATE: Supreme Court rejects Missouri appeal on funeral protest law

Monday, June 29, 2009 | 2:20 p.m. CDT; updated 9:09 a.m. CST, Thursday, March 3, 2011

JEFFERSON CITY — The U.S. Supreme Court on Monday refused to consider Missouri's appeal of a court order barring the state from enforcing a law restricting protests near funerals.

State lawmakers in 2006 enacted two new laws creating buffer zones between demonstrators and funerals and processions. The legislation targets a Topeka, Kan., church whose members picketed outside the funerals of people killed during the Iraq war, stating that they believe soldiers are dying as divine punishment because the United States harbors homosexuals.

Months after the laws took effect, Westboro Baptist Church member Shirley Phelps-Roper filed a lawsuit seeking to have the protest bans tossed out over free speech concerns. A federal appeals court in St. Louis ruled that Missouri cannot enforce the protest ban until the lawsuit is resolved.

The U.S. Supreme Court on Monday denied without comment Missouri's appeal of that order barring enforcement.

Numerous states have passed laws restricting protests at funerals, and some have been challenged. For its version, Missouri lawmakers crafted two largely similar measures to create a fallback position in case one is invalidated by the courts.

The primary law bars protests near any funeral, procession or memorial service from an hour before until an hour after the service. The secondary measure specifically states that protesters must stay back at least 300 feet. Both provisions levy the same penalty — up to six months in jail and a $500 fine for a first offense and up to one year in jail and a $1,000 fine for repeat offenders.

Phelps-Roper, who also challenged a similar ban in Ohio, is represented by the American Civil Liberties Union of Eastern Missouri. Lawyers are still going through evidence for the case and a trial on the merits of the constitutional challenge could come in July 2010.

ACLU attorney Tony Rothert said Monday the lawsuit was prompted by two provisions in Missouri's law. He said that without a specific distance requirement and a roving buffer zone that follows the procession, Phelps-Roper couldn't be guaranteed the ability to lawfully protest.

"It bans protests in public areas and public streets and sidewalks in a way that the Supreme Court has never allowed to happen," Rothert said.

Missouri Attorney General Chris Koster said the Supreme Court's decision is preliminary, and his office will continue fighting in court to preserve the ban and protect families mourning the death of loved ones.

"We are trying to stop these protests in Missouri, and the General Assembly has given us instructions to do everything we can to allow military families to bury their loved ones in peace," said Koster, a Democrat.

Two St. Joseph lawmakers sponsored the bans after members of the Kansas church protested outside the 2005 funeral of a soldier from their legislative districts.


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