Case of the anti-gay preachers set to test US Constitution to the limit

First Amendment right to free speech in spotlight as Christians who believe that God hates homosexuals appear before Supreme Court

David Usborne,Us Editor
Tuesday 05 October 2010 00:00

America's fierce attachment to freedom of speech as a sacred right of all of its citizens however offensive or dangerous will be tested tomorrow when the US Supreme Court plunges into the case of a little church in Kansas that likes to preach that God hates homosexuals.

In the past when quandaries regarding the First Amendment rights have come before America's highest court, the outcome has been consistently in favour of protecting them, however distasteful the circumstances. A soft-porn magazine got away with lampooning the late Rev Jerry Falwell (Hustler suggested his first sexual experience had been with his mother); and all punishment was deemed misplaced for a man who burned the Stars and Stripes 20 years ago.

This time may be different, some legal experts say. The justices will be confronted by Westboro Baptist Church of Topeka and the question will arise again: when, if ever, can contemporary standards of decency, ethics and common sense trump the edicts of the American Constitution?

Led by Fred Phelps with a congregation a little shy of 60, this church preaches a simple but jarring message: all bad things happening to America – including the deaths of its soldiers in Iraq and Afghanistan – stem from just one thing, its tolerance of homosexuality. For years, Mr Phelps and his multiple children (except for one who recently disowned him) have roamed the country picketing events and institutions they think especially deserving of their ire, including schools, churches and government buildings.

Most famously the church years ago began picketing funerals of American men and women killed at war. It is this special form of protest and a lawsuit brought against them by one grieving father that the Court will consider.

Lance Corporal Matthew Snyder died in Iraq's Anbar province in 2006 when he was aged 20. As his family gathered to grieve at his funeral in Maryland, they found they had unwelcome additional guests. Police were deployed in case of violence – the Westboro crowd always announces upcoming pickets on its website and often attracts opposing protesters – and they were not allowed in the church.

But out in the car park they brandished their signs: "Thank God for Dead Soldiers," "Pope in hell", "Fag troops," and, according to the family, "Matt in hell."

The father of the soldier, Albert Snyder, did not let this intrusion pass. He sued Mr Phelps and his church and won a jury award of almost $11m. The judge in the case reduced that award to $5m.

Subsequently, a Virginia court of appeal threw out the entire judgment on the grounds that Mr Phelps and his flock are protected under the First Amendment of the Constitution.

The case seemed resolved until, to the surprise of many, the US Supreme Court agreed to hear arguments. That it did so signals to some that the Court may want to reinstate the award to Mr Snyder.

That would be regarded by some as a dramatic assault on the Constitution. Mr Snyder probably has the sympathy of nearly everyone in the United States and has the legal support of a good number.

When the appeals court withdrew his award and additionally ordered that he pay about $16,000 to Mr Phelps to help defray his legal costs, the conservative Fox News talk show host Bill O'Reilly stepped forward to pay the money for him. His gesture reflected the conflicting instinct that the Constitution is sacred, but so too are military funerals.

"I didn't think any human being could do the things that they did," Mr Snyder said in a recent interview. "They mentally abused and terrorised me at the lowest point of my life." A wide array of organisations for whom the protection of the right to freedom of speech is paramount have sided with Mr Phelps, even filing briefs in his support with the Supreme Court. They include the American Civil Liberties Union (ACLU), and a long roster of media organisations including the Associated Press, Bloomberg and The New York Times.

If Mr Snyder and his legal team prevail – a ruling from the justices will remain months away – it will be because of a distinction that the Court may choose to make between public figures which are targeted by hateful speech or actions and private citizens.

Mr Falwell was a public figure while Mr Snyder is a private citizen. As such, some scholars say, the need to protect him against egregious speech or intrusion may be considered more important. "It would be a sweeping change," said Robert Corn-Revere, a First Amendment lawyer in Washington. "Where do you draw the line between public and private?"

"This is not just about punishing an offensive message," added Stephen McAllister, former dean of the University of Kansas School of Law, who thinks the Court will side with Mr Synder. "It is about their methods and tactics. They chose a private funeral and a grieving family to publicise their message. It is targeted to cause severe emotional distress."

The late Supreme Court Justice William Brennan laid out the principles of defending the First Amendment in the flag-burning case of 1989.

"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable," he said.

"We have not recognised an exception to this principle even where our flag has been involved."

The campaigners: Baptists on a mission against homosexuality

Fred Phelps and his family first achieved notoriety in 1998 when they picketed the funeral of Matthew Shepard, a gay student who was murdered by two homophobic thugs. Mr Phelps, 80, a former civil rights lawyer, set up the homophobic Westboro Baptist Church in 1955. In recent years, it has also protested outside the funerals of US servicemen killed in Iraq and Afghanistan, suggesting that the soldiers were paying for the sins of the nation. On its website – – the group describes homosexuality as the "lifestyle of soul-damning, nation-destroying filth".

According to the group, based in Kansas – which counts its followers in the dozens and mostly comprise members of Mr Phelps's family – the US "crossed the line" in 2003 when the Supreme Court struck down a ban on gay sex, ruling that the law was an unconstitutional violation of privacy. For campaigners, it was a welcome limit on the state's ability to rule on what went on inside the privacy of the home.

Mr Phelps saw it otherwise. His church's website states that the "modern militant homosexual movement" poses a "clear and present danger to the survival of America, exposing our nation to the wrath of God". It appears to revel in criticism, citing Louis Theroux's BBC documentary The Most Hated Family in America on its website.

The group says it has spent hundreds of thousands of dollars travelling to picket the funerals of more than 400 servicemen with placards saying: "Thank God for dead soldiers" and "God hates America". It is not the church's only attention-grabbing stunt. In 2008, it burnt a copy of the Koran in Washington.

Mr Phelps and his daughter were banned from entering Britain in 2009. The pair had planned to picket a play based on the final days of Mr Shepard, whose body was found tied to a fence in Wyoming.

Mr Phelps's daughter Shirley Phelps-Roper called the British government "filthy" for believing they could "keep the word of God from coming into her borders", according to the BBC.

On the docket: Supreme Court's key cases

Violent video games The Court will decide on a case, brought by California's Governor, Arnold Schwarzenegger, on whether his decision to ban the sale of violent video games to children breaches the First Amendment's free speech principles. The games industry says that its voluntary regulation, like the film industry's, is adequate. A decision backing Mr Schwarzenegger could affect other media.

DNA evidence A Texas death row inmate, Hank Skinner, wants blood and hair found at the scene of a murder to be tested against his DNA; he says it could prove his innocence. He claims his civil rights are being violated. But prosecutors say the request has come too late and that the results would be inconclusive.

Employees' privacy Nasa research scientist Robert Nelson, along with 27 others, is suing the government after a decree that they would be subjected to background checks on drug use, medical records and their finances despite their work being low risk in terms of security. The decision will clarify how far workers can expect privacy from employers. Nasa is appealing against an earlier ruling that favoured the employees.

Prison capacity Three federal judges ordered the state of California to release 46,000 inmates, an instruction that Governor Schwarzenegger did not take to warmly. The case will test whether the special panel was authorised to give the order, which argued that the state could not provide adequate medical care to so many.

Register for free to continue reading

Registration is a free and easy way to support our truly independent journalism

By registering, you will also enjoy limited access to Premium articles, exclusive newsletters, commenting, and virtual events with our leading journalists

Already have an account? sign in

By clicking ‘Register’ you confirm that your data has been entered correctly and you have read and agree to our Terms of use, Cookie policy and Privacy notice.

This site is protected by reCAPTCHA and the Google Privacy policy and Terms of service apply.

Join our new commenting forum

Join thought-provoking conversations, follow other Independent readers and see their replies


Thank you for registering

Please refresh the page or navigate to another page on the site to be automatically logged inPlease refresh your browser to be logged in