Topeka The state's attempt to prevent the Rev. Fred Phelps and his followers from picketing funerals hit a snag Wednesday.
The Kansas Supreme Court indicated that it is not ready to consider whether a new state law against picketing funerals is constitutional. Phelps and his Topeka church, Westboro Baptist, have received national attention for picketing soldiers' funerals.
The law says protesters can't be within 150 feet of a funeral one hour before, during or two hours after the end of the service. It went into effect July 1, but a provision says it won't be enforced until the Supreme Court or a federal court rules that it is constitutional.
Attorney General Paul Morrison filed a lawsuit in May asking the court to review the law, and named Gov. Kathleen Sebelius as the defendant.
But the court said it isn't sure Sebelius should be the defendant and that it wasn't clear what relief Morrison is seeking. It gave Morrison until Aug. 24 to explain why his lawsuit shouldn't be dismissed.
While Morrison and legislators believe the law will withstand a court challenge, Phelps and Westboro Baptist believe it will fall because it violates their right to religious freedom. Shirley Phelps-Roper, an attorney and church spokeswoman, said the law and Morrison's lawsuit are "a colossal waste of government resources."
"They're shucking and jiving instead of just obeying their God and obeying the law," said Phelps-Roper, a daughter of the pastor. "This nation is doomed, and they're like drunks staggering around in their own vomit. They can't even think straight."
Senate Majority Leader Derek Schmidt, who conceived of requiring a court review before having the law enforced, had questioned the Democratic attorney general's legal strategy, saying it wasn't what legislators had contemplated.
"It sounds like the court was as puzzled by the pleadings as I was," said Schmidt, a Republican from Independence. "I think he still has an opportunity to put the pieces back together. Humpty Dumpty is teetering on the edge, but he hasn't fallen and broken open yet."
Spokeswoman Ashley Anstaett defended Morrison's strategy, which focused on attacking the requirement for the attorney general to seek a court ruling before the law can be enforced. If the law isn't enforced, there's no legal controversy and no reason for the court to decide whether it's constitutional, she said.
She said Morrison will file a response to the court's order.
"We cannot litigate a law that has not yet become a law," Anstaett said. "The attorney general took the only possible avenue available to give Kansas a funeral picketing law that could be enforced."
The court issued a seven-page order, signed by Chief Justice Kay McFarland. It spells out legal issues it wants Morrison to address before it decides whether to dismiss his lawsuit. The court typically doesn't issue such an order unless all seven members agree.
Before they began picketing soldiers' funerals in June 2005, Phelps and his church were best known for a public campaign against homosexuality. That campaign included picketing at public places - even other churches - with signs such as "God hates fags." They contend U.S. soldiers' deaths are God's punishment for Americans' tolerating homosexuality.
The federal government, Kansas and at least 37 other states have enacted laws regarding protesting at funerals, according to the National Conference of State Legislatures. Such laws have been challenged in federal courts in at least three states.
The new Kansas law also prohibits obstructing public streets or sidewalks. It allows family members to sue if they feel protesters defamed the deceased, an exception to the general rule of law that the dead can't be libeled or slandered. Violators could be fined $1,000 and sentenced to six months in jail.
Kansas legislators worried that Phelps and his followers would successfully challenge a state law and the state would be forced to pay them damages, funding further protests. Lawmakers included their "trigger" so that the law would be found constitutional before it was enforced.
But Morrison asked the court whether legislators had the power to force the attorney general, as an executive branch officer, to file any lawsuit.
The court responded by saying if that's the issue, one question is whether the Legislature, and not Sebelius, should be the defendant. Furthermore, the court said, it's premature for it to rule on whether the law itself is unconstitutional.
"We have no case or controversy before us on that issue," McFarland wrote. "There is no need for this court or any court to order the governor to enforce the law as passed by the Legislature and signed by her. That is her constitutional duty."
Anstaett said such a statement by the court shows Morrison was right to pursue the strategy he did. If Morrison had simply asked the court to rule on the law, she said, it would have said there was no controversy to decide.
But Schmidt said: "He chose to go a different route than what we had foreseen. It now sounds like he has some work to do to convince the court that this is an avenue that should produce an answer to the central question."