This article first appeared in the St. Louis Beacon: October 31, 2008 - Missouri Attorney General Jay Nixon and Gov. Matt Blunt had asked the court to allow enforcement of the 2006 law that makes it a crime to picket or protest "in front of or about" a funeral from an hour before it starts to an hour after it concludes. The law was passed in response to the military funeral protests of the Westboro Baptist Church of Topeka. The church believes that God kills American soldiers as punishment for the "don't ask, don't tell" policy permitting gays in the military.
The case has a complicated history, but a history illustrative of the rightward movement of the federal judiciary and especially of the 8th Circuit U.S. Court of Appeals, which is based in St. Louis.
A year ago, the 8th Circuit had ruled that the funeral law couldn't be enforced. But then the conservative-leaning court decided it had been enjoining state laws too often. In an abortion case from South Dakota, the court ruled that it should set a higher bar for issuing an injunction against enforcement of a law passed through the democratic process. This is in line with conservative thinking that the judiciary should not lightly throw out the decisions of representative bodies elected by the people.
The South Dakota abortion decision was cited earlier this week by The New York Times to demonstrate the impact that President George W. Bush's appointees have had moving the federal appeals courts to the right. The South Dakota law had required doctors to tell women considering an abortion that the procedure would "terminate the life of a whole, separate, unique living human being." Doctors said that forcing them to use that precise language violated their free speech rights. A federal judge agreed and put the law on hold. But the full appeals court ruled it had not shown enough deference to the democratic process that had led to the law's passage. Henceforth, those seeking to enjoin state laws would have to show not just that they had a "fair chance" of succeeding, but that they were "likely" to succeed.
That new legal standard opened the door for Nixon and Blunt to go back to the appeals court earlier this year and argue that the Missouri funeral law passed muster under this more deferential standard. On Friday, a three-judge panel of the appeals court decided that the Missouri funeral law didn't survive even the more deferential test. It ruled that Shirley Phelps-Roper, daughter of the founder of the church, was likely to be able to show the law violated her First Amendment rights.
Judge Kermit E. Bye wrote that the Missouri law was similar to a Nebraska law that had prohibited picketing in front of churches. Both laws were aimed at protecting solemn occasions from unwanted noise and disruption. In the 1990s, the appeals court had ruled that Nebraska could not use the law to stop anti-abortion protesters who showed up in front of a Lincoln, Neb., Presbyterian church where an abortion doctor was a deacon. Just as the right of the worshipers to quiet outside the church was outweighed by the anti-abortion protesters' First Amendment rights, Bye wrote, "Phelps-Roper is likely to prove any interest the state has in protecting funeral mourners from unwanted speech is outweighed by the First Amendment right to free speech."
The court was not making a final ruling on the merits of the law, but Judge Bye pointed out that the Missouri law is broader than similar laws in other parts of the country because it is not targeted at the activity that would disrupt a funeral. A law that limits speech would have to be narrowly targeted to be constitutional. Joining Bye were Judge Lavenski R. Smith and Senior Judge Pasco M. Bowman.