Omaha A federal judge has dismissed claims questioning the constitutionality of Nebraska’s flag-mutilation law but said she’ll consider arguments over a state law barring protests within 300 feet of funerals.
U.S. District Judge Laurie Smith Camp ruled Shirley Phelps-Roper can raise questions about the flag-mutilation law during her criminal case in state court, so there’s no need to hear them in federal court.
Smith Camp based Monday’s decision on a U.S. Supreme Court ruling that determined questions of federal constitutionality can be heard during ongoing proceedings in state courts when there’s an important state interest and adequate opportunity to discuss constitutionality.
Phelps-Roper, 52, is a member of the Westboro Baptist Church of Topeka, Kan., whose members believe U.S. troop deaths are punishment for the nation’s tolerance of homosexuality.
She sued state and local officials in December, arguing Nebraska’s flag and funeral protest laws, along with a city of Bellevue ordinance requiring permits for things like parades and rallies, are unconstitutional.
Her attorney, Margie Phelps, said an appeal to the judge’s dismissal of her client’s challenge to the flag-mutilation law was in the works.
“What people need to be real clear on in Nebraska ... is this little church that services God will not bow down and worship your filthy flag — period,” Phelps said.
The federal lawsuit followed Phelps-Roper’s 2007 arrest during a protest at the funeral of a National Guardsman in Bellevue. Authorities say she let her then-10-year-old son stand on an American flag and she wore a flag as a skirt that dragged on the ground.
Phelps-Roper is scheduled to stand trial in August in Sarpy County Court on charges of violating the flag law, disturbing the peace, contributing to the delinquency of a minor and negligent child abuse stemming from the protest.
Nebraska’s law against flag desecration bars intentionally “casting contempt or ridicule” upon a U.S. or Nebraska flag by mutilating, defacing, defiling, burning or trampling it. State law also prohibits picketing within 300 feet of a funeral or memorial services. The law applies one hour before services begin and two hours after they conclude. Violators of either law face a misdemeanor charge.
Smith Camp’s decision allows Phelps-Roper’s lawsuit to go ahead on claims the protest law is unconstitutional. Questions about the Bellevue ordinance were thrown out because the city had repealed it.
Also dismissed was a proposed settlement between Phelps-Roper and Bellevue officials. According to terms of the settlement included in court documents, the city and its employees, including police officers, would not enforce the state’s flag and protest laws, would agree the charges against Phelps-Roper were not justified and would not testify in the criminal case, among other things.
Smith Camp ruled that although Bellevue officials had agreed to the settlement, state defendants in the case had not, so the court couldn’t approve it.