TOPEKA, Kan. — The Kansas Supreme Court effectively ended a law banning picketing at funerals, ruling Tuesday that it was unconstitutional for legislators to require a court to uphold the law before it could be enforced.
That “judicial trigger” was intended to prevent the Westboro Baptist Church from collecting damages from the state after a successful appeal of the law.
The law was passed in response to the sect’s picketing of military funerals; the Rev. Fred Phelps and his followers claim U.S. combat deaths are God’s punishment for the nation’s tolerance of homosexuality.
Ruling on a law before it can be enforced usurps power from the Legislature, Justice Marla J. Luckert wrote in the unanimous ruling.
“Courts do not have jurisdiction over purely hypothetical questions associated with nonexistent issues,” she wrote.
The court did not address the merits of the 2007 law, which bars protesters from being 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.
The law also allows families to sue if they feel protesters defamed the dead. That single provision survives after the court’s ruling.
The federal government and at least 37 states have enacted such laws in response to Phelps and his church.
Within hours of the ruling, state Rep. Raj Goyle urged a House panel to pass a bill that’s the 2007 law without the court trigger; he also added language allowing people to sue for emotional distress. A hearing is planned next week.
“The court’s ruling was strictly about a legal technicality, not the restrictions on protesters which we believe are constitutional,” said the Wichita Democrat.
Shirley Phelps-Roper, daughter of Fred Phelps and attorney for his Westboro Baptist Church, said the Kansas high court’s ruling was “surprising, but it’s lovely.”
“They didn’t need to invite the Legislature to take another run at what is a lost cause,” Phelps-Roper said. “Nothing they put their hands on impacts us, so why keep messing with it?”
Gov. Kathleen Sebelius urged legislators to respond quickly, noting the bill last year had broad support and “protecting the privacy of grieving Kansas families, as they mourn the loss of a loved one, remains a high priority.”
“I’m appalled with those who choose to add grief to the families of our brave soldiers and other fallen Kansans. I look forward to signing a constitutionally sound measure as soon as the Legislature gets it to me,” she said.
Phelps and his church, long known for a public campaign against homosexuality, began picketing soldiers’ funerals in June 2005 and have protested at some 330 funerals in 47 states.