Manchester funeral protester ban ruled constitutional

A federal appeals court on Oct. 16 ruled that the city of Manchester’s ordinance to prohibit protests at funerals is constitutional. The ordinance is aimed at preventing picketing by Westboro Baptist Church, an anti-gay church in Kansas known for protesting and disrupting the funerals of military men and women killed in the line of duty.

Manchester in 2007 enacted an ordinance to prohibit funeral protests for a period of one hour before a funeral until one hour after a funeral. Seven other surrounding cities enacted the same legislation, and the church then sued each city, including Manchester. However, Manchester is the only one that fought while the other cities repealed their bans.

The District Court found the funeral protest ordinance to be an unconstitutional restriction on the church’s First Amendment rights. That decision was affirmed by the 8th Circuit Court of Appeals, but the entire panel of the 8th Circuit on Oct. 16 vacated the District Court decision and instructed the District Court to enter judgment in favor of Manchester.

“This means that the ordinance that is currently on the books is constitutional and enforceable and it means that the injunction that was issued against it is overturned,” said Evan Reid, of the law firm of Lewis, Rice & Fingersh, Manchester’s outside counsel.

In conclusion, the 8th Circuit said, “We conclude that the Phelps-Ropers (spokespeople for Westboro Baptist Church) have not shown in their facial challenge to Manchester’s amended ordinance that the city has imposed unconstitutional limits on the time, place, and manner of their picketing. Manchester only limits picketing or other protest activities within 300 feet of a funeral or burial service while it is occurring or for one hour before and after, and it survives First Amendment scrutiny because it serves a significant government interest, it is narrowly tailored and it leaves ample alternative channels for communication.
“Having concluded that the Phelps-Ropers have not shown that Manchester’s amended ordinance violates the Constitution, we reverse the decision of the District Court, vacate its injunction as well as its award of nominal damages, and remand for entry of judgment in favor of the city of Manchester.”

Patrick Gunn, city attorney, said in an email that this opinion constitutes a “complete victory” for the city.

“While this judgment is subject to an appeal to the United States Supreme Court, I believe such would be highly unlikely since there is now no split in the various Circuits of the Federal Court, and I would have serious doubt that the United States Supreme Court would be inclined to consider the case on appeal under these circumstances,” Gunn wrote to the Manchester Board. “I expect that the city’s ordinance may well become a prototype for use by many cities throughout the country and, to that extent, you should be comforted that you have now afforded a method whereby grieving families and loved ones of our fallen military may be protected from outlandish actions intended to cause further grief during their time of loss. I commend you for fighting the fight that needed to be fought.”

Reid said “time will tell” in terms of whether other cities will enact a similar ordinance to Manchester’s.

The original ordinance is modeled on a Missouri statute that was challenged and is not directly affected by the Oct. 16 ruling.

“So if those towns or any town within the 8th Circuit wanted to use Manchester’s ordinance as a model, they’re certainly free to do it,” Reid said.