ST. LOUIS (CN) - A federal judge should decide whether Nebraska's newly amended ban on protests within 500 feet of funerals is constitutional, the 8th Circuit ruled.
Shirley Phelps-Roper, of the Westboro Baptist Church, challenged the original law - which restricted picketing within 300 feet of a funeral - in 2009.
Westboro members believe God kills American soldiers as punishment for the country's increasingly tolerance of homosexuality. They frequently picket military funerals to express this belief, and claim that the Nebraska Funeral Picketing Law violates its right to free speech.
A federal judge originally refused to grant Phelps-Roper an injunction, the Nebraska governor signed into law a bill that increased the buffer zone from 300 to 500 feet.
After a three-judge panel of the 8th Circuit reversed the denied injunction in October 2011, Nebraska sought a rehearing.
Its petition was stayed, however, pending an en banc decision in a case that presented similar issues, Phelps-Roper v. City of Manchester.
That October 2012 ruling ultimately upheld a law in Manchester, Mich., that makes it illegal for groups to protest within an hour and 300 feet of a burial or funeral service, though picketing along the procession route is allowed.
The court vacated its ruling on the Nebraska law two months later in favor of a panel rehearing. On Friday it remanded the issue of the amended Nebraska Funeral Picketing Law (NFPL) for further proceedings in District Court.
"Had Phelps-Roper only challenged the validity of the NFPL on its face, a remand to the district court might not have been appropriate," the unsigned opinion states.
"Here, by contrast, Phelps-Roper specifically raised an as applied challenge to the NFPL," the judges continued. "The record, however, has not been developed as to whether and, if so, how the amended statute has been applied after August 2011," the panel wrote. "Nor has the district court considered the constitutionality of a 500 foot buffer zone, including arguments that Phelps-Roper now advances concerning the Nebraska legislature's alleged motivation in enacting the 2011 statute and the response of Nebraska officials concerning the state's interests in the larger zone. We conclude that the better course is to afford the district court an opportunity to make appropriate findings of fact and conclusions of law before evaluating the validity of the new statute."
Judges Diana Murphy, C. Arlen Beam and Steven Colloton made up the panel.
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