Missouri Has Work to Do On Funeral Protest Law
ST. LOUIS (CN) - Part of Missouri's funeral protest law can be tailored to duck the constitutional claims of the hateful Westboro Baptist Church, the 8th Circuit ruled.
Shirley Phelps-Roper had sued the state as a member of her father's Westboro Baptist Church, which believes that God kills members of the U.S. military because of the country's acceptance of homosexuality. Westboro members picket military funerals to give voice to their beliefs and claim free-speech violations if any state or municipality tries to keep them out with new legislation.
Missouri adopted its first statute, Section 578.501 or the Spc. Edward Lee Myers' Law, Westboro greviously upset the family of a fallen soldier by picketing his funeral in 2005. It adopted Section 578.502 as a fallback provision to that law.
Guided by the 8th Circuit, a federal judge in Jefferson City granted Phelps-Roper a preliminary injunction, and Westboro members held approximately 33 pickets in Missouri without incident through January 2010, according to court records.
Missouri appealed after the District Court declared sections 578.501 and 578.502 unconstitutional in August 2010.
The following year, a three-judge panel of the 8th Circuit blocked a law against funeral protests passed by the city of Manchester, Mo. After an en banc hearing, the court reversed in October 2012, finding that Manchester's protest restrictions are limited enough in scope to avoid First Amendment violations.
While Manchester's law bans protests within 300 feet of a funeral or burial place between one hour before and one hour after a funeral, the embattled Missouri laws do not define a set buffer zone and include the funeral procession in the ban.
The trial court had found that the lack of a buffer zone and the inclusion of the word procession made the laws too broad.
Citing its Manchester decision, the 8th Circuit concluded last week that procession could be struck out of the statute to avert unconstitutionality.
"Here, both section 578.501 and section 578.502 are unconstitutional, at least in part because of the inclusion of the word 'processions' into the definition of a 'funeral,'" Judge Kermit Bye wrote for the panel. "The word 'processions' is, however, severable from the rest of the statute. The word 'processions' appears just once in each statute, and only as part of a serial list. See Mo. Rev. Stat. §§ 578.501(3), 578.502(3). The only change to each statute which would result from severing the word 'processions' is a narrower definition of a 'funeral' as 'the ceremonies and memorial services held in connection with the burial or cremation of the dead.' Under these circumstances, the remaining provisions of the statutes are not 'so essentially and inseparably connected with, and so dependent upon, [the word 'processions'] that it cannot be presumed the legislature would have enacted the valid provisions with the void [word].' Accordingly, we may sever the word ';processions' from section 578.501(3) and from section 578.502(3)."
The panel affirmed summary judgment on the buffer zone issue, finding that the law improperly bans picketing and protest activities "in front of or about" a funeral.
"We affirm the district court's judgment to the extent the district court held Mo. Rev. Stat. § 578.501 violates the Free Speech Clause of the First Amendment," Bye wrote. "We reverse the district court's judgment to the extent it held Mo. Rev. Stat. § 578.502 is unconstitutional under the Free Speech Clause, sever the term 'processions' from section 578.502(3), and hold the remaining provisions of section 578.502 are narrowly tailored time, place, and manner restrictions. Finally, we remand for the district court to address in the first instance Phelps-Roper's alternate challenges that Mo. Rev. Stat. § 578.502 violates the Free Exercise Clause of the First Amendment, the Due Process Clause of the Fourteenth Amendment, and Missouri statutory and constitutional law."
Judges Roger Wollman and Bobby Shepherd concurred with Bye.