Washington Blade - May 11, 2006
Joshua Lynsen

In a lawsuit filed in U.S. District Court in Kentucky, the organization alleges the ban unconstitutionally restricts free speech. The lawsuit asks the court to suspend the law for the duration of the case, and ultimately overturn it.

The ACLU, which is led by openly gay Executive Director Anthony Romero, filed the lawsuit May 1 on behalf of Kentucky resident Bart McQueary, who has protested three times at funerals and other events in Kentucky during the last three years.

McQueary is identified in the lawsuit as a supporter since 2001 of Westboro Baptist Church in Kansas, a congregation led by the anti-gay Rev. Fred Phelps.

Lili Lutgens, a staff attorney for ACLU of Kentucky, said the state's new restrictions unfairly prohibit non-disruptive, non-disorderly speech and signs.

"We cannot prohibit free expression because we don't like certain activities, nor can we suppress the speech of groups or individuals simply because we find their message distasteful," she said. "The First Amendment applies to everyone."

Shirley Phelps-Roper, Phelps' daughter and a lawyer, said the lawsuit is notable because it aligns the pro-gay ALCU with Westboro Baptist Church.

"It makes for strange bedfellows," she said with a laugh. "It almost makes you speechless."

But she said Kentucky lawmakers went too far when they prohibited pickets, demonstrations or disruptions within 300 feet of memorial services.

"They are no better than the Taliban in Afghanistan," she said. "They've violated every clause of the First Amendment."

Dan Pinello, a City University of New York government professor and author of "Gay Rights & American Law," said the case deserves to be heard.

"The ACLU and other civil rights groups have most notably represented people who are out of the mainstream, whether it be criminal defendants or unpopular groups," he said. "We have the right in this country to legal representation."

Kentucky's restrictions, which became law March 27, were enacted after Westboro Baptist Church protesters targeted funerals of military personnel killed in Iraq.

The lawsuit says such funerals were targeted because protesters "claim U.S. soldiers are dying because God is punishing America for tolerating homosexuality."

Westboro Baptist Church protesters had previously targeted funerals of gays and people who died from AIDS.

Pinello, who is gay, said politicians waited to enact the restrictions for a simple reason.

"Gay people are dispensable, politically," he said. "That's just the cold, hard reality of having 4 percent of the voting population that identifies as gay or lesbian."

Phelps-Roper said Westboro Baptist Church knew it was inviting controversy when it started protesting at military funerals one year ago.

She said the protests attack America's "three major idols"-the United States flag, the dead and the military.

"We knew they were not going to take this lying down," she said. "I distinctly remember thinking æThey're going to start passing laws.'"

This year, lawmakers in 25 states reacted to the funeral protests by introducing legislation to ban or limit protests at funerals and other memorial services. Five of those proposals had become law by March, according to the National Conference of State Legislatures.

Kansas enacted a law in 1993 in response to Phelps' picketing at the funerals of people who had died from AIDS. The law was overturned in 1995.

Lutgens said ALCU of Kentucky hopes to follow that precedent and overturn the new law.

"Mr. McQueary clearly has the right to express his message in a non-disruptive manner, even if others disagree with him," she said. "That's what the First Amendment is all about."

Restrictions too broad?

Lutgens said Kentucky's restrictions are problematic in part because they're too broad and vague.

She said it's now illegal to whistle while walking down the street within earshot of a funeral, or stop for conversation on a public sidewalk near a funeral home or church while a memorial service is under way.

Violators can be charged with first-degree disorderly conduct, punishable by up to a year in jail.

Pinello, an ACLU member, said he doesn't begrudge the ACLU taking the case.

"I may disagree with the message the client is communicating. I do with Fred Phelps. I think it's abhorrent," he said. "But that doesn't mean he and his followers don't have constitutional rights, just as I do."

Phelps-Roper said although Westboro Baptist Church isn't a party to the case, and won't support the ACLU's efforts, she said Kentucky lawmakers must stop restricting American rights.

"They're dismantling the crown jewel of all her freedoms," she said. "It's the brightest star in our constitutional galaxy."

Phelps-Roper said Westboro Baptist Church protesters are planning to continue their funeral pickets, but will obey state restrictions.

She said the ACLU lawsuit is insignificant compared to the church's mission.

"Frankly, whatever happens, I don't care," she said. "We're going to do our job, and the Lord our God is going to watch our backs."

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