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Judge: Mo. funeral protests ban unconstitutional

Monday, August 16, 2010 | 3:39 p.m. CDT; updated 9:08 a.m. CST, Thursday, March 3, 2011

JEFFERSON CITY — A federal judge Monday ruled that Missouri laws restricting protests near funerals are unconstitutional.

Missouri legislators passed two laws in 2006 in response to protests at soldiers' funerals by members of Westboro Baptist Church of Topeka, Kan. The church contends soldiers' deaths are God's punishment for the U.S. tolerating homosexuality.

U.S. District Judge Fernando Gaitan ruled the laws violate the right of free speech guaranteed by the U.S. Constitution.

The primary state law had barred protests near any funeral, procession or memorial service from an hour before until an hour after the service. The secondary measure specifically stated protesters needed to stay back at least 300 feet. Both provisions levied 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.

Gaitan concluded Missouri officials did not demonstrate the protest restrictions served a significant government interest nor that they had been narrowly tailored to prevent the harm of interruptions of funeral services. The judge wrote he was sympathetic to the argument people attending a funeral deserve some protection but noted a federal appeals court already had previously rejected that argument.

The ruling came in a lawsuit filed by the American Civil Liberties Union on behalf of Westboro church member Shirley Phelps-Roper. Last year, Missouri officials were barred from enforcing the protest restrictions while the lawsuit was pending. Missouri Attorney General Koster appealed that decision but the U.S. Supreme Court refused without comment to consider the case.

Koster also plans to appeal Gaitan's latest ruling, said spokeswoman Nanci Gonder.

Gonder said Gaitan's hands were tied by a federal appeals court ruling that there was no compelling government interest in protecting people from unwanted speech outside their homes. She said the attorney general's office would ask the appeals court to "reconsider the abhorrent acts" church members "routinely inflict upon our servicemen and women."

ACLU attorney Tony Rothert said Monday that Missouri's restrictions created too large a zone in public areas where speech was restricted and made speech illegal even if it was not disruptive.

"Just not liking speech isn't enough reason," Rothert said.

Rothert added that the ban was aimed at the Kansas church but could have affected more people. For example, he said it could have made it illegal to picket anywhere a funeral procession happened to drive past.

Numerous states have passed laws restricting protests at funerals; Phelps-Roper also challenged a similar law in Ohio. Missouri's law was sponsored by two St. Joseph lawmakers after members of the Kansas church protested outside the 2005 funeral of a soldier from their legislative districts. State lawmakers said they approved two laws so there was a fallback position in case one was challenged in court.

According to court documents, members of the Kansas church say they have held more than 42,000 pickets, including more than 500 at funerals.


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Comments

Carlos Sanchez August 16, 2010 | 4:19 p.m.

Is there nothing sacred anymore? Nothing?

(Report Comment)
John Schultz August 16, 2010 | 5:07 p.m.

Do you mean the Constitution to our legislators? In that case, no, nothing is sacred.

(Report Comment)
Ellis Smith August 16, 2010 | 5:22 p.m.

Forgive me, but there's no delicate way to say this:

If someone were to urinate on a deceased's coffin, would that also rate a "free speech" exemption?

Actually, Carlos, we gave up "sacred" for Lent back in 1957 and never got around to reinstating it.

(Report Comment)
Carlos Sanchez August 16, 2010 | 5:36 p.m.

@Ellis we sold our souls to the Liberal Bleeding Hearts for a mere penny.

@John Constitution or not some things need to be kept sacred no matter what the costs. A fallen soldier's funeral is one of those things. They went and put their lives on the line and gave the ultimate sacrifice so you and I can live free.

The Judge that amended this ruling in an obvious Closet Liberal who does not believe in God,Guns,Bible and Our Country! God have mercy on his soul. He will need it when he stands at Judgment Day.

Just plain disgusting.

(Report Comment)
John Schultz August 16, 2010 | 6:28 p.m.

Carlos, respect for the dead doesn't outweigh our rights to free speech, even disgusting speech, under the First Amendment. It would be interesting to see if this ruling makes people rethink the constitutionality of hate crime legislation.

(Report Comment)
Carlos Sanchez August 16, 2010 | 7:18 p.m.

@John Schultz it does in the eyes of a lot of Americans who obviously believe in God,Guns,the Bible and showing real respect for those who have willingly sacrificed their lives for us all to be safe here at home!

Some things must be respected and kept sacred no matter what the cost of a tiny bit of freedom or liberty and one of those is the Burial Of A Fallen Soldier!

Anything else is Un-American IMHO! Is there no shame in this nation anymore? Is there no honor in the death of a soldier anymore? Are we as a nation gone the way of those who strain the knat but swallow the camel? Just how low as a nation have we become?!

John there is such a thing as being too over board about the Constitutional Guidelines. I wonder what all of those dead soldiers would have to say on this issue if they could speak today. I bet the majority would turn over in their graves at the spectacle this nation has become.

Bah it does no good talking to you. May God have mercy on your soul when you stand there on your judgment day. You are going to need it.

(Report Comment)
John Schultz August 17, 2010 | 10:21 a.m.

Carlos, I've probably got more volunteer hours working with a local military charity than you do, so you can can your holier-than-thou platitudes and worrying about my soul. Instead of whining about the handful of Westboro Baptist crazies protesting the funerals, or complaining about people actually upholding the Constitution and not ignoring it when convenient (which makes you sound like a politician to me), maybe you should direct your thunder and fury at the people who sent our youth to Iraq and now Afghanistan for no good reason, with no defined goals, and no idea when they will be coming home. I am tired of hearing about the families of Marines dealing with the loss of their sons and daughters for a stupid war in a backwards third-world country that has never known and never will accept the freedom we are trying to impose on them. Bring the boys back home, as Pink Floyd said.

(Report Comment)
Ray Shapiro August 17, 2010 | 12:01 p.m.

While I believe it's in bad taste to crash a private funeral on private, sacred ground, if Westboro has the right to venture on to PRIVATE PROPERTY due to freedom of speech and freedom to disrupt, then I would break out a good New Orleans Funeral March Band, in full regalia, and dance circles around them.
Now that's the kind of ban' that I'd find far less annoying...a bit more dignified and a bit more respectful...
http://www.youtube.com/watch?v=aOFB8yapT...
Our founding fathers must be rolling over in their graves as Westboro fanatics desecrate the intent of freedom of religion and freedom of speech when it comes to funerals...I don't think that any one of them would be cheering on Westboro for their twisted financial opportunism to actually sue their targeted victims and for taking advantage of the Constitution at a funeral. (Except for maybe Benedict Arnold.)
I guess now a days, even terrorists, at a funeral, can get away with murdering the memory of someone's dearly departed.
Long live America, and its bad taste for which it stands.
(Just can't wait to see that Mosque being built near ground zero. Maybe Westboro can open up an East Coast office in this so-called diversity community center. Both groups love Jews, gays and America's military...

(Report Comment)

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