St. Louis A federal appeals court panel said Friday that Missouri should be barred from enforcing a state law limiting protests near funerals until it can be determined if the law is constitutional.
The same three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis reached the same conclusion last December. But the state of Missouri appealed, saying the judges had used the wrong legal standard.
The court on Friday said Westboro Baptist Church member Shirley Phelps-Roper had met the higher standard and was entitled to an injunction barring the state from enforcing the law.
Attorney General Jay Nixon said Friday he would appeal the decision to the full 8th Circuit.
Gov. Matt Blunt said he was "deeply disappointed" in the decision he believes will hurt families and friends of dead soldiers denied a peaceful funeral.
Margie Phelps, an attorney, church member and Shirley's sister, said Friday she wasn't surprised.
"We've known from the time (various states) started passing these laws, they were stepping way out of bounds," she said. "By passing these laws, they're trying to shut the message up. You cannot do that in this country."
Missouri legislators passed a law in 2006 that criminalizes the picketing of a funeral or procession. The law came in response to Westboro Baptist Church members picketing soldiers' funerals. The Topeka church claims God allows soldiers to be killed as punishment for the nation's sins, including homosexuality, divorce and remarriage, idolatry and greed.
Phelps-Roper filed suit in July 2006, seeking to have the statute declared an unconstitutional infringement on her First Amendment right of free speech. She also sought preliminary and permanent injunctions barring Nixon and Gov. Matt Blunt from enforcing the law.
She appealed after U.S. District Judge Fernando Gaitan in Kansas City said she had failed to show that she had a strong probability of winning the overall lawsuit and that she would be irreparably harmed if the protest ban continues to be enforced.
The appeals court panel disagreed, saying "there is enough likelihood" that Phelps-Roper will be able to prove that Missouri's law is overbroad to the point she could win on the constitutionality question.
The panel emphasized it is not considering whether the Missouri law is unconstitutional, only that Phelps-Roper is entitled to a preliminary injunction while Gaitan considers the constitutionality question.
The case would head back to the district court, although Nixon said he will ask the full appeals court to rehear the case. It's not clear at this point whether Missouri can enforce the law because the appeals court didn't issue an injunction.
Phelps said church members will picket Normandy High School, in suburban St. Louis, on Monday. That school's students have had voluntary HIV testing after an infected person told health officials as many as 50 teenagers might have been exposed to the virus that causes AIDS.
Missouri's law bans picketing and protests "in front of or about" any location where a funeral is held from an hour before the funeral begins until an hour after it ends. Forty-two states and the federal government have adopted similar restrictions or bans in response to the protests by members of Phelps-Roper's church.
Phelps said Westboro is challenging any laws that keep members from being there. The church pickets funerals in every state, and protests almost daily.
The church is appealing federal appeals courts decisions on cases in Ohio and Maryland, and Phelps predicted the issue would end up in the U.S. Supreme Court.
"The God smacks keep coming, and we keep connecting the dots in this country. If you obey him, he will bless you. If you disobey him, he will curse you.
"This nation is doomed, and it's our duty to publish the fact that America is doomed for her sins."