LINCOLN, Neb. (ABP) — A federal judge has granted a temporary restraining order blocking the arrest of a member of a controversial Baptist church for breaking a Nebraska law against desecrating the American flag.
A Westboro Baptist Church member pickets a 2005 military funeral in Smyrna, Tenn.
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The order by United States District Judge Richard Kopf allowed Megan Phelps-Roper, a member of Westboro Baptist Church in Topeka, Kan., to hold the flag upside down and trample it at protests near the State Capitol and a funeral in Lincoln, Neb., July 6, without fear of arrest.
The judge said Phelps-Roper would "suffer irreparable injury" without an injunction because her "fundamental rights" would be lost for a day in that she would be unable to express herself in ways she deemed most effective without subjecting herself to prosecution.
The judge said further that Nebraska's law making it a misdemeanor to cast "contempt or ridicule upon a flag by mutilating, defacing, defiling, burning or trampling" on it is "almost certainly unconstitutional."
Phelps-Roper witnessed her mother's arrest in 2007 for contributing to the delinquency of a minor by allowing the girl's 8-year-old brother to stomp on the flag during a picket in Nebraska. The state's chapter of the American Civil Liberties Union defended Shirley Phelps-Roper, saying the law — passed before a 1989 U.S. Supreme Court ruling that declared flag burning symbolic speech protected by the First Amendment — was "a dead-letter law that should not be on the books."
The small church known for protesting near the funerals of fallen soldiers with signs like "God Hates Fags" and "God Hates America" incorporates the flag in its pickets because of its belief that one of America's sins is "idolatry," according to a complaint filed by Margie Phelps, an attorney and church member.
She said national idolatry takes forms including "intense worship of the dead, particularly soldiers, and intense worship of the American flag, which occurs in direct connection with the funerals and memorial services of dead soldiers."
The independent congregation — not affiliated with any particular Baptist denomination — claims on its website to have conducted more than 40,000 peaceful demonstrations against homosexuality since 1991. The church is led by the Phelps-Ropers' father and grandfather, Fred Phelps, who founded the congregation composed mostly of family members around Primitive Baptist and Calvinist doctrines in 1955.
Margie Phelps said she would be moving soon for summary judgment and a permanent injunction against the Nebraska law, which she said is unconstitutional because it is "a content-based restriction on speech" with a sole purpose "to prohibit the expression of specific viewpoints."
She said the church obeys laws and does not engage in "civil disobedience" and that how members' words "land on the hearts of the individuals is not their prerogative, they believe, but in God's control."
In his order granting the temporary injunction, Kopf said, "While the public may not like the fact that Plaintiff has a constitutional right to dishonor the American flag … as a way of expressing herself regarding her religious beliefs, the First Amendment trumps the citizenry's preference for patriotism."
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Bob Allen is senior writer for Associated Baptist Press.
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Baptist church claims funeral protests protected by 1st Amendment