Phelps-Roper et al v. St. Charles, Missouri

Filing 91

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants motion for summary judgment is GRANTED. (Doc. No. 69.) IT IS FURTHER ORDERED that Plaintiffs motion for summary judgment is DENIED. (Doc. No. 63.) a separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 8/20/13. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

SHIRLEY L. PHELPS-ROPER and
MEGAN PHELPS-ROPER,
Plaintiffs,
v.
COUNTY OF ST. CHARLES,
MISSOURI,
Defendant.

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No. 4:10CV02232 AGF

MEMORANDUM AND ORDER
This action challenging the constitutionality of an ordinance of Defendant County
of St. Charles, Missouri, (“the County”) is before the Court on the parties’ cross motions
for summary judgment. For the reasons set forth below, Plaintiffs’ motion shall be
denied and Defendant’s motion shall be granted.
The two Plaintiffs are members of Westboro Baptist Church. The version of the
ordinance at issue, Ordinance 10-112, was passed by the County on December 21, 2010.
The ordinance prohibits picketing at or near funerals. Plaintiffs assert that enforcement
of the ordinance will violate their First Amendment free speech, religious liberty, and
assembly rights. They also claim that the ordinance violates Missouri’s Religious
Freedom Restoration Act, Mo. Rev. Stat. §1.302. Plaintiffs represent that they picket
near certain funerals, including those of American soldiers, to publish Plaintiffs’ religious

beliefs that God is punishing America for its failure to obey God’s word on issues such as
homosexuality.
The facial purposes of Ordinance 10-112 are:
[T]o protect the privacy of grieving families and to preserve the peaceful
character of cemeteries, mortuaries, churches and other places of worship
during a funeral while still providing to picketers and protestors the
opportunity to communicate their message at a time and place that
minimizes the interference with the rights of families participating in
funerals.
(Doc. No 31-3.)
The ordinance creates the civil offense of “unlawful picketing of a funeral” which
a person commits if he or she pickets a funeral “during the period from one hour prior to
the commencement of any funeral through one hour following the cessation of any
funeral.” “Picketing of a funeral” consists of “protest activities … within three hundred
feet of the premises of a cemetery, mortuary, church or other place of worship or other
location during, and which target, a funeral.” “Funeral” includes “the ceremonies and
memorial services held in connection with the burial or cremation of the dead” but
specifically excludes funeral processions and wakes. A violation of Ordinance 10-112
may result in a fine of up to $1,000, but no incarceration.
On January 24, 2011, the Court granted Plaintiffs’ motion for a preliminary
injunction. The Court believed that the Eighth Circuit case of Phelps-Roper v. Nixon,
545 F.3d 685 (8th Cir. 2007), mandated the conclusion that Plaintiffs were sufficiently
likely to succeed on their claim that the state’s interests were outweighed by the First

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Amendment, to support a preliminary injunction. After the parties filed motions for
summary judgment, the Court, with the agreement of the parties, stayed this case
pending resolution by the Eighth Circuit Court of Appeals en banc of Phelps-Roper v.
City of Manchester, No. 3197EM. On October 16, 2012, the Eighth Circuit issued its
decision in City of Manchester, and the stay was lifted. Thereafter, the Court granted the
parties’ joint motion for a second stay pending resolution by the Eighth Circuit of PhelpsRoper v. Kostner, No. 10-3076. On April 26, 2013, the Eighth Circuit issued its decision
in that case and the second stay in the present case was lifted. The parties completed
their briefing on their motions for summary judgment which are now ripe for resolution.
In City of Manchester the en banc Court of the Eighth Circuit considered an
ordinance identical for all intents and purposes to Ordinance 10-112. The Court
overruled aspects of Nixon and held that the ordinance in question was content neutral;
served a significant government interest of protecting the privacy of funeral attendees;
was narrowly tailored, that is, did not burden substantially more speech than necessary to
further the state’s legitimate interest; and left open ample alternative channels of
communication. City of Manchester, 697 F.3d 678 (8th Cir. 2012). And in Kostner, the
Eighth Circuit held that an analogous state funeral protest law was constitutional for the
same reasons, with the exception of the inclusion of “processions” into the definition of
“funeral.” Kostner, 713 F.3d 942 (2013).
These precedents make it clear that Plaintiffs’ constitutional challenge to
Ordinance 10-112 fails. In their reply brief filed after the issuance of Manchester and
Kostner, Plaintiffs made no attempt to distinguish those cases, but only argued that
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Ordinance 10-112 violated the Missouri Religious Freedom Restoration Act. However,
the new decisions by the Eighth Circuit also defeat Plaintiffs’ claim under the Missouri
statute because these cases establish that the ordinance furthers a compelling government
interest and is not unduly restrictive considering the relevant circumstances. Lastly, the
Court rejects Plaintiffs’ argument that Ordinance 10-112 is unconstitutionally vague.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s motion for summary judgment is
GRANTED. (Doc. No. 69.)
IT IS FURTHER ORDERED that Plaintiffs’ motion for summary judgment is
DENIED. (Doc. No. 63.)
A separate Judgment shall accompany this Memorandum and Order.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 20th day of August, 2013.

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