Omaha -- A federal court in Lincoln should hear a Kansas-based church's challenge to an amended Nebraska law that requires protesters to stand 500 feet away from a funeral service -- 200 feet more than previously required -- a federal appeals court said Friday.
The case stems from a lawsuit filed in 2009 by members of Topeka, Kan.-based Westboro Baptist Church, which contends U.S. soldiers and others are being struck down by God for defending a nation that tolerates homosexuality. The group routinely protests at funerals around the country and has protested at dozens of funerals in Nebraska.
In December, the 8th U.S. Circuit Court of Appeals vacated its 2011 opinion that struck down Nebraska's original funeral protest law, citing a ruling from two months earlier that a St. Louis suburb could enforce a similar funeral protest ordinance. The 8th Circuit then asked both sides in the Nebraska case to submit briefs supporting their arguments in light of the Missouri ruling.
At that point, the 8th Circuit said, it became aware Nebraska had enacted an amended version of the protest law that pushes protesters further back.
Westboro member Shirley Phelps-Roper named various Nebraska officials and law enforcement agencies in her lawsuit that sought to have the original 300-foot protest law declared unconstitutional. A federal district judge sided with the state, and Phelps-Roper appealed.
While her appeal was pending, Nebraska lawmakers enacted the change requiring protesters to remain at least 500 feet from funerals. Even though Phelps-Roper and the state made repeated mentions in subsequent documents of the new 500-foot law, the 8th Circuit said it was not made aware that the new law had taken effect.
"The district court has only had an opportunity to consider the original version of the (law), which restricted protests within 300 feet of funerals or burial services," a three-judge panel of the 8th Circuit wrote Friday. The panel said case law states that when a change in law does not resolve the conflict, "the preferred procedure is for the court of appeals to remand the case to the district court for reconsideration of the case under the amended law."
Regarding Friday's ruling, Margie Phelps-Roper, a Westboro member and attorney for the church in the lawsuit, lauded the appeals court's instruction for the lower court to consider not only her challenge that the law is unconstitutional on its face, but also in how it's applied.
"Here's what happens every time we're in Nebraska," she said. "Everybody except us is well inside the 300- and 500-foot zone. They're right outside the building … bikers, people with signs, flags -- everything that denotes protest activity.
"We're not only pushed 300 and then 500 feet away, we're often pushed 1,000 and 1,500 and even 2,000 feet away," she said. "That's called an unequal application."
The Nebraska Attorney General's Office, which is representing the state in the lawsuit, said it's prepared to defend the 500-foot buffer law.
"The families and friends of Nebraska's fallen heroes deserve to be protected from the disgusting demonstrations of Westboro Church," attorney general's office spokeswoman Shannon Kingery said.