Protecting the Living and the Dead: How Missouri Can Enact a Constitutional Funeral-Protest Statute
Marcolla, Madison, Missouri Law Review
Phelps-Roper v. Koster, 734 F. Supp. 2d 870 (W.D. Mo. 2010).
The self-proclaimed "most hated family in America," the Phelpses of the Westboro Baptist Church (WBC), have caused great pain across the country. (1) Their highly publicized protests have sparked wide-ranging debate about what the First Amendment protects and where such protection ends. Members of the WBC believe that Americans ignore God's commandments by committing sins, particularly by supporting homosexuality, and that God exercises his rage and fury at this disobedience by causing catastrophic events and death. (2) WBC members picket near funerals to "warn society of God's wrath." (3) After the WBC held a picket near the funeral of a soldier in St. Joseph, Missouri, the state legislature enacted Missouri Revised Statutes sections 578.501 and 578.502. (4) These statutes prohibited protesting within a certain space and time at funerals. (5) On August 16, 2010, the United States District Court for the Western District of Missouri struck down the funeralprotest laws in Phelps-Roper v. Koster, holding that they were unconstitutional restrictions on free speech. (6) The case is now on appeal to the United States Court of Appeals for the Eighth Circuit. (7)
This Note will analyze the constitutionality of Missouri's funeral-protest statutes under the First Amendment. (8) This Note argues that, with certain changes, Missouri's funeral-protest statutes should pass constitutional muster. In Part II, this Note analyzes the facts and holding of Phelps-Roper v. Koster. Next, in Part III, this Note explores the legal background of the First Amendment, time, place, and manner restrictions, and how other courts have decided cases involving funeral-protest laws. Part IV examines the court's rationale in Phelps-Roper v. Koster. Lastly, Part V explains where the district court erred and how Missouri's funeral-protest statutes can be changed to become constitutional time, place, and manner restrictions. This Note concludes with a challenge to the Missouri legislature to draft and enact a constitutional funeral-protest statute and a hope that discussion by the Supreme Court of the United States will allow Missouri to do so.
II. Facts And Holding
Fred Phelps founded the WBC in Topeka, Kansas, in 1955. (9) Members of the WBC believe, among other things, that God punishes America for tolerating the "sin" of homosexuality by killing Americans. (10) The congregation engages in picketing and protesting to express its religious beliefs. (11) The WBC has participated in more than 47,000 anti-gay protests. (12) Many of these protests have taken place near the funerals of American soldiers. (13) The purpose is to warn mourners that unless they ask for forgiveness, they will suffer and die. (14) WBC members carry large, colorful signs that express messages such as "God Hates Fags," "Divorce Plus Remarriage Equals Adultery; God Hates Adultery," "God Hates the USA," "America is Doomed," "Thank God for Dead Soldiers," "God is America's Terror," "Priests Rape Boys," "Fags Doom Nations," and "9-11: Gift from God." (15)
only sixteen days after Missouri enacted its funeral-protest statutes, WBC member Shirley Phelps-Roper filed suit in the United States District Court for the Western District of Missouri. (16) She sought entry of a declaratory judgment finding that the statutes were unconstitutional under the First Amendment as well as a preliminary injunction prohibiting enforcement of the statutes. (17)
Missouri Revised Statutes section 578.501.2 provided, inter alia:
It shall be unlawful for any person to engage in picketing or other protest activities in front of or about any location at which a funeral is held, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral. Each day on which a violation occurs shall constitute a separate offense. …