The National Pulse

Picket Fencing

Laws Blunting Church’s Protests Worry First Amendment Experts

Posted Jul 12, 2006 11:44 AM CDT
By Molly McDonough

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On any other day, a clergyman known as the “biker bish­­op” and his pack of some 200 leather-clad, American-flag-car­rying motorcycle riders might have been the object of media attention as they gathered for a soldier’s funeral.

But on a sunny April 19, re­porters and photographers in South Holland, Ill., in Chicago’s south suburbs, were congregating down the street, barely within earshot of the bik­er crowd.

There, on a usually quiet neighborhood corner, with Peace Christian Reformed Church as an unintentional but ironic backdrop, a small church group from Kansas shouted chants and shook signs summing up their “protest min­istry.”

The words, “God Hates Fags,” “Semper Fi Semper Fag” and “Priests Rape Boys,” were emblazoned onto brightly colored placards. They were held by young boys and an elderly woman, Margie Phelps, the wife of the pro­test ministry’s founder, Fred Phelps. Leading the protest was the couple’s daughter, Shirley Phelps-Roper, who also is the ministry’s lawyer.

“You turn this nation into fags, our soldiers are coming home in body bags,” shouted Phelps-Roper, who wore a blue T-shirt extolling the group’s Web site. A full-size Amer­­ican flag was tucked into her pants.

Phelps-Roper drove from Topeka, Kan., home of the fam­ily’s Westboro Baptist Church, to protest at the funeral of Lance Cpl. Philip J. Martini, who died April 8 in com­bat operations in Al Anbar Province, Iraq.

The Westboro group had been protesting in similar fash­ion for more than 15 years, preaching that homosexuality is an abomination and bad things are happening—tsuna­mis, terrorist attacks and other tragedies—because God is punishing America, Canada and the world.

The message had received little attention until the 60 protesters, almost exclusively members of the Phelpses’ extended family, began showing up in small groups to pro­test at soldiers’ funerals in June 2005.

Lawmakers have responded with dozens of proposed stat­utes—dubbed Let Them Rest in Peace bills—that limit funeral protests, mainly by keeping protesters at least 200 feet from a funeral and restricting activity to at least 30 minutes before or an hour after a funeral. As of June 5, 10 states had passed such legislation. And on Memorial Day, President Bush signed into law the Re­spect for Ameri­ca’s Fallen Heroes Act, which limits protests related to veterans buried on federal property.

Bishop James Alan Wilkowski of the Evangelical Catholic Church, who is known as the “biker bishop” because of his penchant for motor­cycles, supports the legislation, especially if part of the goal is to encourage responsible free speech.

“Funerals are not supposed to be public,” says Wilkow­ski, who recalls that Westboro protesters picketed a funeral of a veteran who died of AIDS, threw rocks and cursed at the man’s grieving mother.

SHAKY GROUND IN KENTUCKY?

Considering the inflammatory style of the West­bo­ro crowd, the bills aren’t a surprising political reaction. But many constitutional law experts worry that the new measures are threatening the right of Americans to peaceably protest in public places. At the very least, they argue, the laws are on shaky constitutional ground.

If the legislation is narrowly drafted and enhances disturbing-the-peace statutes, then states may have little to worry about, experts say. But if the laws are drafted more broadly and aren’t viewpoint-neutral, there will likely be successful challenges.

Phelps-Roper says that after the legislatures adjourn for the summer, she and her family will evaluate the legislation and decide whether to mount challenges. (Fred Phelps has a law degree, as do 11 of his 13 children and four in-laws. Most are currently lawyers, but Phelps and some of his family members have given up or lost their licenses. A few others are estranged from the family.)

“The first and foremost thing about those laws is that they, in every respect, violate the Constitu­tion of the Unit­ed States,” Phelps-Roper says. “If we were standing out there with signs that say, ‘God bless America,’ we would not be having this conversation.”

With or without the Phelpses, Ken­­­tucky may be the first test. In May, the American Civil Lib­erties Union of Kentucky, representing a man who has protested alongside the Westboro group, filed a challenge to the state’s new law, which not only limits funeral pro­tests and increases penalties for disorderly conduct, but lets family mem­bers decide whether to allow sounds and images within ear­shot or eyesight of funeral participants. The statute also bars all pick­eting or congregating on public and private property with­in 300 feet of a funeral, wake, memorial service or burial.

“We agree that people should not be able to disrupt funerals, but these sections we are challenging go far beyond that,” says Lili S. Lutgens, an ACLU-Kentucky staff attorney. “It’s blatantly unconstitutional for government to give to private individuals the unfettered discretion to censor the speech of others based upon content.”

Lutgens says that the way Kentucky’s law is written, it could cause problems for the Patriot Guard Riders, the bik­­er collective that gathered in South Holland and has organized to be present at military funerals to pay respect to the dead soldiers and to shield grieving families from the Westboro protesters.

So far, the Patriot Guard Riders, which has grown to more than 25,000 members nationally, hasn’t been limited under Kentucky’s new law, according to Don Woodrick, who organizes the counter-demonstrations for the state. “Since we are invited guests of the family, we consider our­­selves part of the service,” he says.

Yet, UCLA law professor Eugene Volokh is troubled by the Kentucky statute and some of the more broadly crafted laws. In part, Volokh says, he fears that Phelps and his followers could win a constitutional challenge.

“It annoys me that they will get a victory out of [chal­leng­ing these laws],” Volokh says. Winning, Volokh adds, will “give Phelps a feeling of victory, which is something I think he should have as rarely as possible.”

It’s possible that legislation that extends residential picketing restrictions will pass constitutional muster, Volokh says. In 1988, the U.S. Supreme Court up­held nar­­row, content-neutral restrictions against picketing at a per­­son’s home. Frisby v. Schultz, 487 U.S. 474.

Volokh says a valid argument could be made that the same principles that would bar picketing at a private residence could apply to a funeral. But Volokh worries about total bans and acknowledges that this type of legislation may lead to re­strictions on picketing in general.

From Volokh’s perspective, the distance restrictions are already problematic in many statutes. A 500-foot restriction “is clearly unconstitutional if applied to residences,” he says. “Even 100 feet is probably unconstitutional.”

Robert D. Richards, co-director of the Pennsylvania First Amend­ment Center at Penn State Univer­sity, says states are moving quickly to pass these laws, “and I think they should step back and take a look at the greater picture.”

Colorado lawmakers may be heeding that advice. That state’s bill is being amended to conform with Colorado’s other “bubble laws,” which require abortion protesters to stand at least eight feet from people attempting to enter abortion clinics. That restriction was upheld in 2000 by the U.S. Supreme Court. Hill v. Colo­rado, 530 U.S. 703.

SHIFTING TARGETS

No matter what the states do, it’s unlikely that the West­boro protesters will stop. They already are cautious before protesting. In nearly all cases, they notify local officials—and the media—in advance, agree on a time and location for their demonstration, and follow directions from law enforcement on site. When officers want to search them or their vehicles, they comply, Phelps-Roper says, even when they feel their rights are being violated. “We’re not going to stand and fight them, and we are not going to jail,” she says.

Eventually, the funeral protests may not get the West­bo­ro protesters the attention they seek. Their signs indicate they may be moving on to something new.

At the Martini funeral in South Holland, the protesters revealed a new set of signs declaring, “God Hates Cripple Soldiers” and “Thank God for Maimed Soldiers.”

Those were for the next protest of the morning, outside a Veter­an’s Administration hospital in Hines, Ill.

“These are religious fanatics who are really sick,” says nearby resident Ernie Yates, who joined the Patriot Guard Riders at Martini’s funeral.

Yates says he’ll be back. “If these sickos are going to be there, I’ll be there,” he says.

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