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Many readers have heard of the Westboro Baptist Church and its picketing and protests against homosexuality using signs and language that are intentionally offensive. Recently the United States Supreme Court handed down its decision in the case of Snyder v. Phelps. The defendants were the Westboro Baptist Church itself and the Phelps, who are members of the church. The church is known for its activities in protesting and picketing against homosexuality, usually with provocative signs and slogans. The church and its members were sued for their picketing and protesting, but the suit was dismissed because their speech was Constitutionally protected. The case was widely hailed by the media as a case protecting the speech of churches. Such a ruling would be welcome in this day and age, especially considering that the subject matter of “speech” was a condemnation of homosexuality. Many articles under this rubric and elsewhere have discussed the trends in the law that protect homosexuality and raise the specter that speech condemning homosexuality could be considered hate speech. In this context, a decision affirming the right of a church to proclaim the Word of God against homosexuality would be welcome. However, the Supreme Court’s decision in Snyder v. Phelps did little to ensure that the biblical preaching of our churches against such sins is protected.

To understand the implications of this decision, it is important to understand the factual circumstances. The Court itself discussed the background of the case in some detail in its ruling. The Westboro Baptist Church was started by Fred Phelps in 1955 in Topeka, Kansas. The church believes that God is sending His judgment on the United States for its tolerance of sin, especially the sin of homosexuality, particularly in the U.S. military. For the last 20 years or so, the church has been picketing at military funerals, as well as other events, to draw attention to its views.

The issue in this case arose when an American soldier, Marine Lance Corporal Matthew Snyder, was killed in Iraq. His father, Albert Snyder, arranged for the funeral to be held at the Catholic church in his hometown of Westminster, Maryland. Phelps became aware of the funeral arrangements and traveled to Maryland with two of his daughters and four of his grandchildren. On the day of the funeral, the Westboro members picketed on public land adjacent to the street approximately 1,000 feet from where the funeral was held. They held signs with slogans on them. The slogans on these placards were quite graphic and crass, but must be included here to understand the nature of the case. The signs stated things such as “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.” They sang hymns and recited Bible verses, but did not go near the actual site of the funeral.

Albert Snyder did not see the writing on the signs at the time of the funeral, but saw them later on news reports. Mr. Snyder was extremely upset by the signs, and eventually filed suit under several state law tort claims. A tort claim is basically a private action for damage to a person, such as for injuries sustained in an accident. The claims that Mr. Snyder made were based on defamation, publicity given to private life, intentional infliction of emotional distress, intrusion on seclusion, and civil conspiracy. Westboro moved to dismiss the suit, claiming its activities are protected under the First Amendment to the Constitution. The trial court dismissed some of the tort claims, but let the rest proceed to trial. The jury held Westboro liable for $2.9 million in compensatory damages and $8 million in punitive damages.

Westboro appealed, again claiming that its activities were protected by the First Amendment. The Court of Appeals agreed, as did the United States Supreme Court, with eight of the nine justices finding in favor of Westboro. The judgment against Westboro was reversed.

At first blush, it would seem that if the Supreme Court found First Amendment protection for Westboro’s offensive, highly public condemnation of sin, the decision should surely guarantee that our churches’ preaching condemning sins such as homosexuality would be equally protected. However, the Supreme Court’s reasoning and basis for its decision do not ensure such protection. The First Amendment provides protection for the Free Exercise of Religion, but that is not the basis on which the Supreme Court came to its decision. Rather, the Supreme Court relied on the First Amendment’s protection of Free Speech. This may seem like a small distinction, but in Constitutional jurisprudence, it does make a great difference. The aspects of Westboro’s actions that the Court relied on to find protection do not necessarily apply to actual preaching.

First, the Supreme Court found that Westboro’s actions constituted protected speech because their speech addressed “matters of public concern.” The Court noted that “[t]he First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.'” The Court described the issues highlighted by Westboro as “the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy” and stated that those issues were “matters of public import.” Mr. Snyder pointed out that some of Westboro’s message was directed towards his son, but the Court found that this was incidental to the same message that Westboro had been bringing for years.

Second, the Court noted that Westboro had conducted its activities on public property. The Court stated that the location at a public place adjacent to a public street “occupies a special position in terms of First Amendment protection.”

Third, the Court mentioned that the picketing was done peacefully. As the Court noted, none of the picketers entered the church property, they did not yell or use profanity, and there was no violence associated with their picketing.

Finally, the Court noted that even First Amendment Free Speech is subject to “reasonable time, place, or manner restrictions.” The Court noted that Westboro had alerted local authorities that they would be picketing and fully complied with police guidance on where the picketing could be staged.

As can be seen from the above factors, the first, second, and fourth would not apply to the preaching of our churches. Our sermons may have practical implications for society and the nation in general, but they generally do not directly address those issues. Our ministers do not focus on broad social issues or policies. Therefore our sermons probably would not be considered to address “matters of public concern.” Nor are our sermons generally delivered in public forums, such as along a public street. Our “speech” is not to society at large, but to the individuals in that society. Therefore, one of our churches could not defend against a claim that someone was offended by the preaching simply by pointing to the precedent of Snyder v. Phelps.

The Snyder v. Phelps decision may not settle any questions about the protection afforded to churches from claims of individuals “offended” at the church’s preaching or writings. However, there are some interesting points to be noted. First, the Court acknowledged that the language and means used by Westboro were extremely hurtful, especially to the family of the fallen soldier. Yet the court found that communication to be protected. If such intentionally hurtful language is entitled to protection under the Free Speech clause, surely some protection should be afforded under the Free Exercise of Religion clause of the same First Amendment. Also, it is interesting that the Court noted that Westboro had publicly stated its beliefs long beforethe incident in question. The Court found that this negated against a claim that Westboro’s actions were targeted towards the Plaintiffs in this case. While courts may not agree with a church’s beliefs, more deference will be given to long held, clearly stated beliefs. It would be very difficult to defend a claim based on the teaching of a church that itself holds differing views on the issue at hand.

It is important to note that the action in this case was brought by an individual, rather than being based on a state law prohibiting any activity of the church. When the day comes that the preaching of the Word in our churches is challenged, it is likely that the challenge will come initially from an individual claiming to be offended at that Word, rather than action by the government. The Supreme Court in the Westboro case did indicate that the First Amendment can provide protection against claims by individuals, but such claims will be easier to pursue as the laws of the state change to ensure “tolerance” for actions deemed sin by Scripture. The actions of groups like Westboro, in the name of Christianity, will serve only to focus the ire of the unbelieving world on the church. We can take comfort in knowing that such challenges will not be able to silence the preaching of the Word without the will of our heavenly Father.