Omaha, Nebraska - An independent Baptist church famous for pushing the boundaries of free speech in controversial protests denouncing homosexuality lost a legal battle when Nebraska's Supreme Court refused to hear the case of a church member accused of desecrating the American flag.
The high court dismissed, without comment the week of Dec. 4, an appeal by Shirley Phelps-Roper, a member of Westboro Baptist Church in Topeka, Kan. She was charged in 2007 with violating a Nebraska law that bans flag desecration. Police arrested Phelps-Roper for wrapping a flag around her waist as a skirt and allowing her son to stand on another flag as she and other members of the church picketed the Bellevue, Neb., funeral of a soldier killed in Iraq.
Represented by the American Civil Liberties Union of Nebraska, Phelps-Roper argued that she was exercising her constitutional right to "symbolic expression" in disobeying a law passed in the 1970s against "mutilating, defacing, defiling, burning or trampling" on a flag. The United States Supreme Court ruled in 1990 that flag burning is a form of protected speech.
Founded by Phelps-Roper's father, Pastor Fred Phelps, Westboro Baptist Church claims to have held more than 40,000 peaceful protests since 1991. The church, composed mostly of members of the Phelps family, contends that homosexuality is an abomination that is bringing God's judgment on the United States.
The group operated in relative obscurity when it targeted mainly funerals of homosexuals, including the 1998 funeral of Matthew Shepard, a student at the University of Wyoming widely viewed as the victim of an anti-gay hate crime.
Public awareness increased after the church in 2005 decided to broaden its protests to military funerals, touting the deaths of U.S. soldiers killed in Iraq and Afghanistan as divine retribution for American's toleration of homosexuality.
Outrage over the military protests prompted several states to pass laws limiting demonstrations within viewing distance of funerals.
In 2007 a Maryland jury awarded the father of a dead Marine $10 million in compensatory and punitive damages after the church picketed his son's funeral. A federal court recently threw out the verdict, finding that inflammatory signs carried by protesters including "Thank God for Dead Soldiers" while "distasteful and repugnant," were protected as free speech by the First Amendment.
Because the ACLU is often known for work preventing the government from promoting religion, some people assume the group is anti-religion. But ACLU lawyers also frequently defend the rights of religious minorities to freely exercise their faith.
"Free speech and the right to protest extends to all Americans, even when the message is very unpopular and upsetting," Laurel Marsh, executive director of ACLU Nebraska, said in a press release announcing the group's entry into the case. "This is the essence of the First Amendment."
The ACLU of Eastern Missouri represented Phelps-Roper in another case in 2006 challenging a law banning pickets and protests one hour before or after a funeral. The Supreme Court recently refused to overturn a court of appeals decision in Phelps-Roper's favor.
Bassel El-Kasaby, the lawyer hired by the ACLU to represent Phelps-Roper, told the Associated Press he plans to appeal the Nebraska decision.
I don't agree with my client," El-Kasaby told Reuters in 2007. "However, I do respect and cherish the right that we all have to dissent, and that's why I'm defending her in this case."
