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October 6th, 2010
08:18 AM ET

My Take: Why a hateful church should win Supreme Court case

Editor's Note: Stephen Prothero, a Boston University religion scholar and author of "God is Not One: The Eight Rival Religions that Run the World," is a regular CNN Belief Blog contributor.

By Stephen Prothero, Special to CNN

A few years ago a daughter of the Protestant minister Fred Phelps called to ask me if I would serve as an expert witness on her father’s behalf in a civil lawsuit.

The controversial case concerned picketing by Phelps’ Westboro Baptist Church (WBC) at the Westminster, Maryland, funeral of Lance Corporal Matthew Snyder, who was killed in Iraq in 2006. Brought by Albert Snyder, the father of the deceased soldier, the case accused Phelps and other WBC members with invasion of privacy and the intentional infliction of emotional distress.

Phelps’ daughter wanted me to testify about the history of anti-government protests in the United States.

She said her father stood in a long line of protesters whose theological views had compelled them to denounce U.S. government policies. She insisted that the signs her father was carrying were protected under the free speech and freedom of religion clauses of the First Amendment.

“What did the signs say?” I asked her. Unapologetically, she rattled off the slogans.  The one I remember was “God Hates Fags.”

This lawsuit, “Snyder v. Phelps,” is to be heard today by the U.S. Supreme Court. The question is whether an appeals court was right to overturn an $11 million jury verdict awarded to Snyder’s father.

The fact that the justices agreed to hear the case means they are at least considering ruling that the speech and actions of the WBC are not constitutionally protected.

Turning the tables on the time-honored conceit that Americans are God’s chosen people, Phelps and his followers insist that “God is America’s enemy” because the United States has abandoned biblical principles for the evils of homosexual lust. In addition to picketing funerals of U.S. military personnel, WBC members step on and burn American flags.

Hate is the operative word on the WBC website godhatesfags.com.

In fact, in the gospel according to the Phelps, God hates not only homosexuals but Islam, Israel, India and Islam. And that's just the I's.

Long before the Gainesville-based pastor Terry Jones threatened to burn Qurans, Phelps and his followers did just that - in a 2008 made-for-the-media event that the media largely ignored.

When Phelps’ daughter came calling, I initially said I would testify on her father’s behalf.  But after talking to some friends who had dealt with the WBC in various capacities, I  backed down.

I now believe I made a mistake.

I have devoted my professional life to studying religion because I value the ability of religious institutions to offer a prophetic “NO” to those who would make idols of their politicians and gods of their governments.

As Phelps’ daughter reminded me, there is a venerable American history of religious protests against the coercive power of the federal government, running from the anti-slavery and female suffrage advocacy of nineteenth-century evangelicals to the civil rights agitation of rabbis and members of the black church.

Phelps got his start as a civil rights lawyer in the 1960s. But somewhere between fighting Jim Crow laws in Kansas and stomping on the memory of Lance Corporal Snyder in Westminster, Maryland, he lost his way.

I do not believe that any God worthy of the name hates homosexuals or Muslims or members of the U.S. military.  So I am no fan of the Rev. Phelps or his extended family, who together comprise the lion’s share of the WBC.

I believe the Anti-Defamation League is right to describe this organization as “virulently homophobic.” The Christian leaders who have denounced Phelps are right to describe its views as unscriptural. And the Southern Poverty Law Center is right to classify the WBC as a hate group. In fact, perhaps more than any other group in America, the WBC is defined by what it hates.

Nonetheless, I am convinced that Phelps and his followers have as much right to say in public whom they believes God hates as their fellow citizens have to say whom they believe God loves.

In recent years anti-WBC laws limiting protests at funerals have been passed in at least half a dozen states and are being considered in a dozen more.

Like Dade County ordinances prohibiting animal sacrifice by Santeria practitioners, which the U.S. Supreme Court rightly overturned in 1993 Church of Lukumi Babalu Aye v. City of Hialeah, each of these laws specifically targets a particular form of religious expression, that of the WBC. So these laws are also  unconstitutional.

Also constitutionally suspect is the Respect for America’s Fallen Heroes Act, approved by a 408-3 vote in the House and signed into law by President George W. Bush in 2006.

All this is to say that the federal jury that found for Snyder’s father and the federal judge who ordered Phelps and his daughters to pay millions in 2006 for protesting the funeral of Lance Corporal Snyder made a mistake. So did Bill O’Reilly, who has reportedly footed some of the legal bills for the Snyder family.

If Phelps and his co-defendants are liable for the intentional infliction of emotional distress in this case, what is to prevent another judge and jury from ordering monetary damages in a case against the owners of the proposed Islamic community center near ground zero for inflicting emotional distress on the families of 9/11 victims? Or, for that matter, on liberals who watch “The O’Reilly Factor”?

When the Supreme Court hears this case I hope it will do the right thing and let Phelps and his family trudge off to their next protest unmolested by the long arm of government. And when the next notorious religious group comes calling I hope I will do the right thing too

The opinions expressed in this commentary are solely those of Stephen Prothero.

- CNN Belief Blog contributor

Filed under: Church • Courts • Homosexuality • Islam • Opinion • Religious liberty • Westboro Bapitst Church

soundoff (152 Responses)
  1. Fred

    Freedom of speech has never been absolute. There have always been restrictions on what you can say and where you can say it. Granted, only a small percentage of speech is prohibited, but it is prohibited nonetheless.
    I see no difference here. I see no problem with ruling that it is illegal to intentionally inflict emotional harm at a funeral.

    October 6, 2010 at 12:25 pm |
  2. Rob

    Everyone has the right to believe what they want to believe and say what they want to say. However, showing up to protest at a funeral borders on (if not blatantly is) harassment in the second degree and should be ruled as such.

    S 240.26 Harassment in the second degree.
    A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person:
    He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.
    Harassment in the second degree is a violation.
    http://definitions.uslegal.com/h/harassment/

    October 6, 2010 at 12:24 pm |
    • Chris

      I agree with you, Rob. Unfortunately, they will argue that their message -does- suit a legitimate purpose.

      October 6, 2010 at 5:36 pm |
  3. Jon

    Would you be willing to give up this bit of freedom of speech to prevent these types of protests? I would. Let the Supreme Court rule very narrowly on this and I say give up this freedom.

    October 6, 2010 at 12:23 pm |
  4. Clearwater

    If they were on public property their 1st ammendment rights stand, even if they could be viewed/heard from the service.

    October 6, 2010 at 12:16 pm |
  5. Tropunlim

    What would Canada do about this? They have inflammatory speech laws.. and nobody gets after them for stifling freedom of speech..

    October 6, 2010 at 11:46 am |
  6. April

    Legal or Illegal, it doesnt matter to you when its your loved one whose funeral theyre protesting. Slinging their hate buzz words, and their ridiculous slogans.... I cant even discribe the anger.

    October 6, 2010 at 11:20 am |
  7. T

    My hope is that if the court rules in favor of the Phelps, tons of activists will travel to Kansas in order to hold up signs that say "Thank God for dead Westboro church members." Hey, it's only legal, and it's poetic justice.

    October 6, 2010 at 11:20 am |
  8. zb

    It is the things we find most objectionable that must be protected most if we are to preserve real freedom and democracy. History proves time and time again that when we fail to protect the rights of others – no matter how offensive their acts may be to us personally – we ultimately risk loosing our own rights in the end. As offensive as Phelps is on every conceivable level protecting his right to speak is more important to protecting all our freedom then the offensive nature of his acts. In truth his shameful acts only bring disgrace upon himself . The only way it brings disgrace upon us is if we fail to honor our most sacred principals for which our soldiers have given the "last full measure" of their life to protect.

    For these very same reasons, I find the Republican/TeaParty/Palinites equally offensive as the Phelps and his band hate, Their message, while less overt, is really no different. Minorities; Gays; Religion; Immigrants are all targets of Rightwing hate. The fact that Americans don't view their form of hate with as much contempt as we direct toward Phelps is a black mark against the people of this nation.

    October 6, 2010 at 11:06 am |
  9. Holly S.

    There must come a time when common sense, dignity & humanity override all else for the greater good, otherwise we will never progress as a species.

    October 6, 2010 at 11:01 am |
  10. Rick McDaniel

    There can be no justice, where a private event is infiltrated by religious maniacs, to protest a stupid cause. A private funeral is NOT a public event, open to anyone!

    You are dead wrong, with your comment.

    October 6, 2010 at 10:55 am |
    • Colin

      If they protest outside of the funeral house/property they can protest whatever they like.

      October 6, 2010 at 11:42 am |
    • peace2all

      I am very curious..... When one of the "Westboro Baptist Church Klan" dies, will anyone go there to picket at their funeal..? 🙂

      Hmmm.... Seems like a pretty good idea to me..!

      October 6, 2010 at 2:09 pm |
    • Selfish Gene

      When they are on public land, they can say scream, sing whatever. as long as they are peaceful it is protected. no matter if you don't like it. that is the first amendment.

      October 6, 2010 at 2:33 pm |
    • peace2all

      @Selfish Gene

      You are absolutely correct. And... that includes my right to stand up against there brand of hatred, and ignorance.

      Peace...

      October 6, 2010 at 3:32 pm |
  11. Thomas

    It is only Freedom of Speech when we allow people we disagree with to be able to speak out.

    If we are going to ban these jerks from spewing their crap, will we also ban pro-military demonstrations at funerals?

    We can't ban one and allow the other and then claim to have freedom of speech.

    October 6, 2010 at 10:49 am |
    • Loren

      Thomas, the Bill of Rights restricts government, not individuals. Just because they are not permitted to protest at private funerals does not mean that they cannot protest on the steps of Congress. Congress and our States are permitted to put reasonable time and place restrictions on the exercise of free speech. A private funeral is not a public event and not an event at which these protests are appropriate. This church's exercise of its rights of free speech are in no way harmed by allowing these families to mourn in private. Anyone who thinks otherwise is a cretin and lacking even the least bit of decency.

      October 6, 2010 at 11:34 am |
  12. Guy Hall

    Most cities have ordinances preventing someone from proclaiming their 1st Amendment protected speech over a bullhorn in a residential neighborhood at 3 AM in the morning. Why, because their right to free speech at 3 AM is interfering with the rights of others wishing to sleep. Mr. Phelps can say whatever he wishes as long as he does not interfere with the rights of others to bury their dead in peace. I think the author here missed this point.

    October 6, 2010 at 10:10 am |
    • Thomas

      I think this is a very important point.

      These guys have the right to speech, but do they have the right to loud distrubing speech?

      A most interesting point.

      October 6, 2010 at 10:50 am |
  13. Tom

    an addendum, the infliction of "emotional distress" by the building of a Muslim community center and mosque is wildly different since its assumes a bigoted stance that Muslims and all Islam worshippers bear even a small amount of responsibility for 9/11 and intend to inflict this emotional distress (unlike this church which quite obviously intends to inflict it).

    October 6, 2010 at 10:06 am |
  14. Reality

    The solution (unfortunately, the Supreme Court will not use it)

    Declare WBC and all other Christian churches to be fraudulent in their advertising thereby having no legal rights under the US Consti-tution.

    Next case!!!

    October 6, 2010 at 10:06 am |
    • Mike

      All of them? Wow, I remember someone trying this in the 40s I think we call them Nazis

      October 6, 2010 at 2:53 pm |
    • peace2all

      @Mike

      True.... And, you and I both know that there are a 'significant' number of christian or muslim fundamentalists that would love to take our rights away, just like the nazi's you speak of, and make us live under christian doctrine or muslim doctrine.

      If, you kept your religion to yourself, instead of trying to infiltrate the school systems and government to dictate policy and science according to the bible, I and others would be o.k. with you and your beliefs.

      It is the attempt to do the very thing 'you' are accusing @REALITY about that scares an awful lot of Americans.

      Peace...

      October 6, 2010 at 3:39 pm |
    • pia wilson

      yes yes
      I say punish ALL religious organizations...
      make 'em pay taxes

      October 6, 2010 at 7:54 pm |
    • Tax the religious!

      Yeah!
      Make 'em pay taxes! They are getting preferential treatment! That is not good for our country.

      End ALL non-profit tax exemptions NOW!!!

      October 7, 2010 at 1:27 am |
    • Mike

      Peace, again How do I keep my religion to myself as much as you would keep your beliefs to yourself?

      October 7, 2010 at 12:15 pm |
  15. Tom

    the supreme court ruled that obscene language/speech is not protected by the First Amendment. ruining funerals of private citizens, perhaps the most solemn events of people's lives, to make political statements that can border on a call to kill people who are soldiers (calls to kill are ruled illegal too) is as obscene as it gets.

    October 6, 2010 at 10:01 am |
    • Colin

      Oh but obscene language IS protected under the first amendment as anything that determined otherwise would be a subjective ruling on what is/is not obscene.

      October 6, 2010 at 11:38 am |
  16. keith

    Freedom of Speech is not a tricky subject. Yes they have the right to assemble and to say what they want to say;however, that also means that people who they have offended have the right to assemble outside these peoples homes and church and protest...loudly if at all possible. Our troops are defending these people's rights and if they want to express their disdain and contempt for their country, leave.

    October 6, 2010 at 9:52 am |
    • DeaconKnowGood

      The greatest disdain to our country is an utterly corrupt Federal government sending our troops to die in battle under false pretense and trying to justify it with proven lies. War protesters are not the enemy.

      October 6, 2010 at 10:12 am |
    • Loren

      Government can place reasonable time and place restrictions on free speech. But, and a big but is that the Supreme Court should rule that this is not a public event at whic protest is protected under the Bill of Rghts. A funeral is a private event o mourning at which these protests should not be protected or permitted.

      October 6, 2010 at 11:37 am |
    • peace2all

      I am very curious...... When one of the "Westoro Baptist Church Klan" dies, will anyone go and picket them...? 🙂 Hmmm...

      Sounds like a potentially good idea to me..!

      October 6, 2010 at 2:07 pm |
    • Frogist

      @keith: I think you are contradicting yourself. If you understand that soldiers died for their right to protest, then aren't you nullifying their deaths by telling them to leave?

      October 6, 2010 at 3:02 pm |
    • peace2all

      @keith

      Hi Keith...! Well, looks like you and I have found some common ground here....

      Peace...

      October 6, 2010 at 3:34 pm |
  17. Julie

    What about that old Oliver Wendell Holmes quote, "My right to swing my fist ends where another's nose begins" (or something to that effect)? Isn't the WBC just swinging their fists directly into the noses of people who are mourning their loved ones, most of whom have died tragic deaths in the first place?

    October 6, 2010 at 9:50 am |
    • Selfish Gene

      No. They stay on public property. Fred is a lawyer, and very careful when walking that thin line.

      October 6, 2010 at 2:18 pm |
    • l

      it's like that fight kids have
      "i'm not touching you. I'm not touching you" while holding their finger a centimeter away from you....you can't get them in trouble cause they haven't done anything to you (yet) but is really irritating.

      October 6, 2010 at 9:25 pm |
  18. Mr Bean

    My Lord and Saviour tells us to Love one another, love your enemies. Judge not, least you be judged. To take advantage of someone grieving for a loved one should not be allowed. To protest at a funeral is not the time for free speech. Any normal human being should know enough to respect such a situation, regardless!! We are all sinners, some saved, some not. I hope the Supreme court will honor the original decision & should The Islamic religion come under fire, then that case will be decided on its merits.

    October 6, 2010 at 9:43 am |
    • Colin

      Good thing your mythical beliefs have nothing to do with legislative power in this country. They should be allowed to protest however much they want. It is free speech.

      October 6, 2010 at 11:35 am |
  19. chris

    I disagree with this author on this case. Yes, they (Phelps and his ilk) have the right to carry signs and publicly protest but the difference here is that they are deliberately targeting private individuals by showing up at soldiers funerals with expressed intent to cause personal distress. In this particular case they went further and allegedly posted remarks about this family on their website. These people can camp out at the Supreme Court, The White House, their local police headquarters, parades, etc. but this should not include a private funeral. This is fundamentally different than someone protesting the existence of public place such as Mosque.

    October 6, 2010 at 9:42 am |
    • Eve

      How is this different from abortion protesters who show graphic pictures outside of women's health clinics? Isn't a medical appointment a private event? Isn't the person a private individual? Why is a protester yelling 'baby killer' considered free speech and not individual harassment? Don't the speech and pictures intentionally create emotional distress?

      October 6, 2010 at 1:30 pm |
    • Frogist

      @chris: Was their intent to create emotional distress to that family? Or was it a means to express their views to the world?

      October 6, 2010 at 2:53 pm |
    • Melissa

      I agree with you 100% Chris. The comparison's to Bill O'Reilly and the Mosque were also a huge stretch. The site of the Isalmic center is OWNED by the man who wants to open it, and the "O'Reilly Factor" is an easily avoidable cable news broadcast. Now if Bill O'Reilly or any religious or political group showed up at a private family event holding outwardly offensive signs the author might have a point. We also have freedom of speech and expression, but we are not allowed to run through the streets naked shouting profanities at passers by. I also agree with Eve.

      October 6, 2010 at 3:29 pm |
    • Annie

      Would it be lawful to have speakers aimed at the protesters with Gospel songs playing?

      October 6, 2010 at 6:58 pm |
    • nekkid and screaming down the street

      @Melissa

      I, for one, would really like to run nekked through the streets while shouting profanities at people.
      Why can't I do this if this is the way I want to express myself?
      If all I do is run around nekked and shout at people, where is the harm? (other than having to look at my body, that is)
      When I see a pink car, I am offended as if I had just seen an ugly, nekked, fat person with wheels running down the road.
      Where is my justice? Why can't I have these pink cars taken off the streets?

      October 7, 2010 at 1:22 am |
  20. jay

    Technically yes they should be allowed to protest, but they are opening pandoras box. Should non believers show up to funerals at churches saying this persons beliefs got them killed and they deserved it? It's disrespectful, and nieve to think anyone fighting for our freedom deserves to die. I'm sad to say these protesters are my fellow Americans.

    October 6, 2010 at 9:22 am |
    • dean

      It's disrespectful, yes. It's naive, yes. It's not illegal. Trying to use the police power of government to silence a particular religious group is the Pandora's Box we should be cautious about opening.

      October 6, 2010 at 9:31 am |
    • Loren

      Dean, it's neither disrespectful, nor inapproprate fr government not to allow the expression of these views–it is a private funeral, a family burying one of their children. What makes this a public event? The government is only restricted on passing laws that would restrict protests at public events, not private ones. This is a common sense issue about common decency. Those church goers have a place to protest and its called city hall and Congress, a funeral is neither of those.

      October 6, 2010 at 11:45 am |
    • dhbarr

      I don't see that the free speech right of Phelps necessarily overrides the free exercise of religion by the father burying his son. A funeral is a private religious ceremony – Phelps has no more right to protest at a private funeral than I have to walk into his church and protest during a sermon. It is private property (vs say a burial at Arlington which may be a different matter) and it is not the "government" seeking to stop the speech, it is a private party seeking damages for the disruption of a private religious event.
      Considering what the court has upheld vs abortion clinic protests, I can see Phelps losing this one.

      October 6, 2010 at 12:14 pm |
    • M-Dog

      I wish that all media outlets could just come to an agreement to never ever EVER cover a single thing the WBC does. Not one article, not one blurb on tv, internet, or newspaper. Just ignore them completely. Their retardery only is powerful when people pay attention to them. Without the media, hardly anyone would know who WBC is. Whether or not a funeral is found to be a public or private affair is yet to be seen (however a cemetary is always public property, unless you hapen to own your own family cemetary and are having the funeral there).
      Until then i suggest that we have a bunch of south african soccer fans follow around the WBC protestors everywhere they go and constantly play vuvuzelas behind them, thus drowning out the stupidity spewing forth from their mouths.

      October 6, 2010 at 12:40 pm |
    • Selfish Gene

      As much as I want them to go away, our country protects their peaceful protest. Plain and simple. You cannot start to censor them, it is a slippery slope, and at the bottom is the Patriot Act.

      October 6, 2010 at 2:17 pm |
    • peace2all

      I am very, very curious...... When one of the "Westboro Baptist Church Klan" dies, will anyone go there to protest at their funeral....? 🙂

      Hmmmm.... Sounds like a potentially good idea to me...!

      October 6, 2010 at 2:17 pm |
    • JonathanL

      There should be lmits to these freedoms – which obviously is the line that is crossed when you go from using a freedom to abusing a freedom. Have we forgotton that hate speech is an abuse? Unfortunately many people take their freedom for granted and abuse it. Freedoms weren't intended to be abused. You have the right, a freedom, to own a gun, but you should not abuse the priveiledge by using it to hurt people. Same thing with your mouth. Maybe the poor father of the dead gay soldier should exert his right to wear a pair of pointed metal tip boots and kick one of the protesters in the butt and then tell him that he is within his rights to defend himself and his family from further abuse from their hate speech.

      October 6, 2010 at 3:16 pm |
    • WhoMe

      "Addicted to Hate" is quite a read on Fred Phelps and family. It can be found on the internet. Chapters two and five are something.
      My father knew Fred prior to his "church" activities. I remember dad saying that Fred was finding a way to get out of paying taxes....he had formed a "church".

      October 6, 2010 at 3:56 pm |
    • Annie

      When you say non-believers, you will have to include the population of God followers in this country. God is love, these people are hate.

      October 6, 2010 at 6:55 pm |
    • FreeSpeechGuy

      I've been denied the right to carry protest signs at the county fair grounds when when the fair is in town. I was told the fair being underway makes it a private event and free speech doesn't apply, even though the property is county public property. Can Mr. Prothero testify for me if I file suit against the county?
      Last time I checked, the last presidents of the US (including Obama) have enjoyed a one mile minimum designated free speech protest zone, meaning that any protesters to an event where the president will attend must contain their protests to an area ONE MILE away from the area where the president will be. Mr. Prothero, have you testified at any trials on the presidential one mile protest exclusion zone policy? I haven't seen your name mentioned in any of those cases.

      October 6, 2010 at 8:43 pm |
    • bgm

      There is a time and place for everything and this was not it. We have so many government buildings and law makers ect., picket them! not a grieving family. Had this been my sons funeral and he did this to me, he would never again have a voice to spat his hateful crap (he would have no tongue) nor the arms to hold a sign! I call that a little bit of well deserved rough justice! he should be sued/prosecuted for stalking, harassment, emotional distress, willful disregard.

      October 8, 2010 at 7:15 am |
    • Nigel Roberts

      What people are missing here is that the Westboro Baptist Church is *not* a church. Its status is in accordance with IRS regs 501(c)4, not 501(c)3. Genuine churches are in accordance with 501(c)3 and can accept tax-deductible contributions.

      Section 501(c)4 is for not-for-profit political advocacy groups and contributions to them are not deductible. WBC is no more a church than MoveOn.org or the NRA, which are also 501(c)4 organizations.

      March 2, 2011 at 9:30 pm |
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The CNN Belief Blog covers the faith angles of the day's biggest stories, from breaking news to politics to entertainment, fostering a global conversation about the role of religion and belief in readers' lives. It's edited by CNN's Daniel Burke with contributions from Eric Marrapodi and CNN's worldwide news gathering team.