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Full 8th Circuit will consider funeral protest ruling

By Scott Lauck
Dolan Newswires

The 8th U.S. Circuit Court of Appeals will take a second look at the constitutionality of a Missouri city’s ordinance restricting protests at funerals.

The court en banc agreed on Wednesday to rehear the case, which was previously decided by a three-judge panel in October.

The case is one of many across the country involving Westboro Baptist Church, which pickets the funerals of U.S. soldiers and others to convey its message that that homosexuality is a sin.

The city of Manchester’s ordinance prohibits protests within 300 feet of a residence, cemetery, funeral home, church, synagogue or other facility within an hour before or after a funeral. The ordinance was modeled after an Ohio statute found to be constitutional by the 6th Circuit.

In the 8th Circuit’s October opinion, the panel said the Manchester ordinance was not narrowly tailored to serve a significant government interest. The panel said it was bound by a 2008 8th Circuit ruling, Phelps-Roper v. Nixon, which involved a Missouri state law limiting funeral protests.

Judge Diana Murphy wrote separately in October to suggest that the city ordinance could be constitutional. She cited Snyder v. Phelps, a recent U.S. Supreme Court opinion that also involved the Westboro church.

The Snyder case involved a father who sued Westboro after a protest at his son’s military funeral. The high court upheld the church’s right to protest, but Murphy pointed to language in Snyder and other cases suggesting that mourners have a right to honor the dead in peace.

“The First Amendment right to free speech is not absolute,” Murphy wrote.

A few weeks later, an 8th Circuit panel considered a funeral protest law from Nebraska. In an unusual move, the panel issued an unsigned opinion calling for the Nebraska law to be enjoined. Yet all three of the panel members wrote separately to urge the full court to reconsider the 2008 Nixon precedent.

Arguments in Phelps-Roper v. City of Manchester, 10-3197, are set for Jan. 9 in St. Louis.

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