St. Charles City Council Considers Measure to Restrict Funeral Protests

St. Charles City may face a lawsuit from the American Civil Liberties Union of Eastern Missouri and Westboro Baptist Church members if the city council decides to pass a proposal to restrict protests during funerals.

Councilman Richard Veit, Ward 1, proposed the legislation, which is similar to a bill passed by the St. Charles County Council Nov. 30. The council is expected to consider the bill at the Dec. 21 meeting, set for 7 p.m.

Veit said he doesn't think it's good public policy to avoid enacting legislation for fear of being sued.

"I am not introducing anything that is unconstitutional," he said. "I'm just introducing a good idea that's long overdue. You only have one chance to bury a loved one. This moment does not have to be disturbed."

The ACLU and Westboro Baptist Church brought a lawsuit against in December. County officials said the suit was expected.

"Ten years ago, we didn't need a law like this, because everyone respected people's right to mourn their deceased relatives," said County Executive Steve Ehlmann. "You shouldn't have to have a law like this. But we do need it when people don't have respect for a grieving family.

Constitution lost in noise?

ACLU staff attorney Grant Doty said often free speech is violated because people don't like the message. The ACLU brought the suit on behalf of Shirley Phelps-Roper and Megan Phelps-Roper, members of Westboro Baptist Church, which is headed by their father, Fred Phelps.

"What is often lost in the noise of the Phelps' message and the noise of those trying to stop the Phelps' message and the political grandstanding is the Constitution," Doty said. "The Constitution is very clear and very speech-protective."

Members of Westboro Baptist Church in Topeka, KS, have protested at funerals of 500 soldiers killed in Afghanistan and Iraq, because they say their deaths are part of God's punishment of America for tolerating gay lifestyles. They often state the soldiers go to hell for protecting Americans and gays.

Church members, led by Fred Phelps and Shirley Phelps-Roper, have protested at several soldiers' funerals in Missouri, including Spc. Edward Myers in St. Joseph, Cpl. Jacob Carver in Harrisonville, and Sgt. 1st Class C.J. Sadell in Weston.

 Nebraska law passed test

The Missouri State Legislature passed a law restricting protests at funerals, but in August federal courts ruled it unconstitutional. That move prompted several cities including St. Peters to rescind ordinances that were similar to the state law under the threat of another ACLU lawsuit. 

But Ehlmann said the county's new law is different in that it does not ban protests along the route of a funeral procession. The new county law is identical to one upheld by the U.S. Circuit Court in Nebraska, he said.

ACLU staff attorney Grant Doty noted the Nebraska ruling is under appeal.

 The ACLU's lawsuit states the St. Charles County law violates free speech and assembly rights and the Missouri's Religious Freedom Restoration Act, which guarantees freedom to act on religious beliefs.

The St. Charles County law passed banning protests within 300 feet of a cemetery, mortuary, or place of worship that targets or disrupts a funeral for one hour before through one hour after those services. 

Doty said he personally finds the Phelps' message distasteful, and said the ACLU often defends the rights of gay people.

"But they are sincere in their belief that God is damning America," he said. "They are truly trying to save our souls."

He also objected to the length of time, noting that funeral visitations can run all day.

"So, we're not just talking about a three-hour time limit. Now, it's 14 hours with no free speech," Doty said.

However, the Constitution no only protects only popular messages, but unpopular messages as well.

"In many ways, the ACLU's client here is the First Amendment," he said.

Doty said the 300-foot barrier is too wide. He said the law restricting abortion protesters from Planned Parenthood Clinics is 25 feet.

"If you can't confront a person having an abortion, what's the point of protesting?" he said. "You want to say to a woman, 'Please save your baby.' Here, they are trying to save our souls."

Assistant County Counselor Bob Hoenyck said the county law meets the four-point test commonly applied to laws when it is necessary to limit freedom of speech.

"First, it has to be content neutral. It can't prevent you from saying certain things," Hoenyck said. "You can regulate time, place and manner, but not content."

The St. Charles County law does not ban any messages, he said.

Doty said that the law also would ban someone from a positive message inside the space and time restrictions

"But do you think it would be enforced that way?" he asked. He said the family would find positive messages acceptable and it would not be enforced.

Ehlmann noted that protesters couldn't be there when President Barack Obama got out of his limo, but could peacefully hold signs across the street.

Second, the law must be narrowly tailored to address a problem, and thirdly there must be a significant government interest. Those are both addressed by the same issue.

"Here, we've defined the problem as protecting the privacy of the family to mourn their dead," Hoenyck said.

Fourth, there must be a way for the party to protest. Hoenyck said they are restricted only by time – one hour before through one hour after the service – and within 300 feet of the premises.

"Outside that window, they can say whatever they want, whenever they want," he said.

The U.S. Supreme Court also is reviewing arguments in a case brought by the father of a deceased soldier against Phelps' church. Albert Snyder claims invasion of privacy and intentional infliction of emotional distress, according to a UPI story.