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Court Upholds Nebraska's Funeral Picketing Law

By Howard M. Friedman

In Phelps-Roper v. Heineman, (D NE, June 21, 2010), a Nebraska federal district court upheld the constitutionality of the Nebraska Funeral Picketing Law. In so doing, the court refused a request by Shirley Phelps-Roper, a member of Westboro Baptist Church, to issue a preliminary injunction against enforcement of the statute . Westboro members often picket funerals of veterans carrying signs proclaiming that God is punishing America for its sins, which include tolerating homosexuality. The court distinguished the 8th Circuit's decision (see prior posting) striking down Missouri's funeral picketing law, saying:

The government interest underlying the NFPL is distinguishable from, and more significant than, the government interest underlying the statute addressed in [Phelps-Roper v.] Nixon. There, the Eighth Circuit ruled that a state?s interest in protecting funeral attendees as a group was outweighed by Phelps-Roper?s First Amendment right.... However, it is not apparent that the ruling in Nixon would apply to a statute designed to protect a much narrower group: family members of the deceased.

Relying instead on a 6th Circuit decision upholding Ohio's funeral picketing law (see prior posting), the court concluded that Nebraska's law:

is narrowly tailored to serve a significant government interest, i.e., the protection of family members attending funeral and burial services, and leaves ample alternative channels for Phelps-Roper?s communications that are protected by the First Amendment.

Yesterday's Wichita (KS) Eagle reports on the decision.

Full post as published by Religion Clause on June 23, 2010 (boomark / email).