Funeral picketing laws around the country are looking shakier after a federal appeals court ruled that a member of an anti-gay church has a “fair chance” of prevailing in her challenge to Missouri's law.

Fred Phelps

The 8th U.S. Circuit Court of Appeals did not find the law unconstitutional, leaving that issue for further proceedings. But its decision is a boost for preacher Fred Phelps and his Westboro Baptist Church, which has been picketing military funerals around the country, claiming casualties in Iraq are God's way of punishing America for its tolerance of homosexuality.

In October, a Baltimore jury awarded $10.9 million in damages to the father of a slain Marine who claimed church members including Phelps's daughter Shirley Phelps-Roper invaded his privacy during a protest at his son's funeral.

Phelps-Roper, an attorney, brought the challenge to section 578.501 of the Missouri revised statutes, which makes it a crime to “engage in picketing or other protest activities in front of or about” a funeral location or procession.

“[W]e conclude Phelps-Roper has a fair chance of proving any interest the state has in protecting funeral mourners from unwanted speech is outweighed by the First Amendment right to free speech,” the 8th Circuit said in reversing a trial judge who denied her motion for a preliminary injunction.

Chief U.S. District Judge Fernando J. Gaitan had relied in part on a U.S. Supreme Court case that upheld a ban on picketing “in front of” a home. But Judge Kermit E. Bye, writing for the 8th Circuit, noted that the Missouri law “defines a 'funeral' to include 'processions' held in connection with burial and cremation.”

“Its 'floating' buffer-zones, therefore, provide citizens with no guidance as to what locations will be protest- and picket-free zones and at what times,” he said.

Bye also said the law may not leave open “ample alternative channels of communication” for the church. “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 8th Circuit is the first appeals court to rule on a challenge to a funeral picketing law and its decision could also apply to laws in Iowa, Minnesota, Nebraska and South Dakota. Westboro Baptist members have sued three states (see table below) and Phelps-Roper's case against the state of Ohio is currently pending before the 6th Circuit.

By Matthew Heller
12/6/07