UPDATES & ANALYSIS

12.13

Eighth Circuit Grants Rehearing En Banc in Funeral Protest Case

by Ryan Koopmans | December 13, 2011

By Ryan Koopmans

The Eighth Circuit has lined up its second en banc argument for January.  Last week, the court granted a Missouri city’s request in Phelps-Roper v. City of Manchester  to reconsider whether the city may ban funeral picketing within 300 feet of a funeral home, church, or cemetery one hour before and after a funeral.  Several cities passed similar ordinances when the Westboro Baptist Church began picketing military funerals in 2005.  That group believes that God hates and punishes the United States for its tolerance of homosexuality; it expresses those views by carrying signs with messages such as “God Hates the USA/Thank God for 9/11,” and “Thank God for IEDs.”

Although the Eighth Circuit rarely grants en banc review, its decision to do so here comes as no surprise.  In 2008, a three-judge panel in Phelps-Roper v. Nixon enjoined a similar limitation on funeral protests, stating the  law likely violated the First Amendment.  Five judges–Riley, Colloton, Gruender, Benton, and Shepherd–voted to rehear that case.  (That’s one vote short of the total needed for en banc review.)  The panel’s decision in Phelps-Roper v. Nixon also squarely conflicts with the Sixth Circuit’s decision in Phelps-Roper v. Strickland(Yes, the cases involve the same plaintiff.)

Judge Murphy likely provided the sixth vote to rehear City of Manchester. Although she didn’t vote to rehear Nixon, Judge Murphy’s  concurring opinion in City of Manchester reads more like a dissent.  And two weeks after she published that opinion,  Judge Murphy wrote in Phelps-Roper v. Troutman that Nixon should be “reconsidered by the full court.”  (In that same case, Judge Colloton also wrote a two-sentence concurrence in which he reaffirmed his desire for en banc review of the issue.)

When the court meets in January, it likely will focus on whether the captive-audience doctrine–a doctrine that generally applies to protests at a person’s home—extends to laws governing protests at funerals.  The U.S. Supreme Court left that question open last year in Snyder v. Phelps because the protesters in Snyder (also members of the Westboro church) stayed “well away from the memorial service.”  In contrast, the ordinance in this case bans protests only within 300 feet of the funeral.  As the United States pointed out in its amicus brief in support of the city, that’s less than the length of the block surrounding the federal courthouse in St. Louis, where the en banc court will hear oral arguments on January 9, 2012.

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