Topeka ? The Kansas Supreme Court was urged Thursday to strike down a section of the state’s funeral picketing law that prevents its enforcement.

At issue is a law enacted this year in response to the protests by the Rev. Fred Phelps and his followers at Topeka’s Westboro Baptist Church at the funerals of soldiers killed in combat.

Legislators included what is called a “trigger” that says the law won’t be enforced until it’s upheld by a state or federal court.

“This case involves an unprecedented statutory mechanism that the attorney general has asked this court to declare unconstitutional and sever the remainder of the very laudable and constitutional statute,” said Solicitor General Stephen McAllister, representing the attorney general’s office.

McAllister said if the trigger is struck down and the rest of the law upheld, it can be enforced immediately.

He said the trigger is unconstitutional because it’s asking the court to advise on a law that isn’t in effect and that courts historically haven’t issued advisory opinions.

“That is simply a request for an advisory opinion, which this court has said for a hundred years or more that it does not render,” McAllister said.

McAllister said the trigger was added by the Senate “as an abundance of caution.”

“The fear was not wanting the state have to pay attorney fees to these potential challenges in the event they were to pursue and prevail in some fashion,” he said.

Jay Warren, representing Gov. Kathleen Sebelius who signed the bill, argued the trigger was constitutional. But if the court strikes it down, Warren urged the justices to allow the rest of the law to take effect.

Justice Eric Rosen asked why wouldn’t lawmakers attach trigger language to all legislation. Warren said this is the first time the Legislature has done this.

“There are enormous practical reasons why a legislature, which is attempting to make laws effective, will rarely make a condition to the effectiveness of the law be a judicial determination,” he said.

In agreeing to hear the case, the court said it wouldn’t consider the issue of whether the law violates picketers’ rights of free speech or to freely practice their religion. It gave no indication when it might rule although its next scheduled to hand down decisions on Feb. 1.

Phelps and his church, long known for a public campaign against homosexuality, began picketing soldiers’ funerals in June 2005. They say the U.S. combat deaths are punishment for the nation’s tolerance of homosexuality.

“The Legislature wanted to circumvent a process they don’t have the power to circumvent. They hope everybody will wink like they did and the Supreme Court ought not give them a pass. If they do their job, they will send the Legislature packing,” said Shirley Phelps-Roper, the church’s attorney and Fred Phelps’ daughter.

Phelps-Roper said even if the law takes it effect, it will have “zero impact” on their protests.

“We don’t stand close to funerals and we don’t say bad things about the dead,” she sad.

The law says protesters can’t be within 150 feet of a funeral one hour before, during or two hours after a service ends. It also makes it unlawful to obstruct any public street or sidewalk. Violators face up to a $1,000 fine and six months in jail.

The federal government and at least 38 states, including Kansas, have enacted funeral picketing laws largely in response to Phelps and his followers, who have protested at funerals throughout the nation.

One section of the law apparently unaffected by the trigger allows family members to sue if they feel protesters defamed the dead – an exception to the general rule of law that one cannot libel or slander the dead.

Last month in Baltimore, a U.S. District Court jury ordered Phelps’ church to pay nearly $11 million in damages to a grieving father whose son was a Marine killed in Iraq. Church members protested at the funeral last year and the father claimed the protests intruded upon what should have been a private ceremony and sullied his memory of the event.

Meanwhile, the 8th U.S. Circuit Court of Appeals in St. Louis said Thursday that Missouri’s law limiting protests at funerals should have been put on hold while a federal judge in Kansas City, Mo., decides whether it’s constitutional. The request to put the law on hold came from Phelps-Roper.

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The case is State of Kansas v. Kathleen Sebelius, governor, No. 98,691.