Snyder v. Phelps — A Judicial Travesty?

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Mar 14, 2011 6 Comments ›› John Eidsmoe

Snyder v. Phelps — A Judicial Travesty?

Last Saturday, after speaking for a Kansas Lutherans for Life (http://www NULL.lflofkansas Issues Conference in Topeka, my host drove me by the Westboro Baptist Church, the home base for Fred (I refuse to call him Reverend) Phelps and his band of deranged followers as they spew forth their hatred against practically everyone and everything.

The building is quite a spectacle. The first thing one notices is a tall flagpole flying an upside-down American flag, above which is another upside-down flag with the field of stars in the corner but with stripes of red, yellow, and orange. Across the front of the building is a huge banner which reads “GOD HATES AMERICA.” Someone has spray-painted on the marquee “God Hates The [Thee?] Phelps.”

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WESTBORO BAPTIST CHURCH (Photo by Americasroof under Creative Commons license)

Topeka also features the Brown v. Board of Education Historic Site (http://www NULL.nps NULL.htm), for this is where the landmark desegregation case began. The Westboro Baptist Church may also become a historic site, for it launched the 2011 Supreme Court decision in Snyder v. Phelps (http://www NULL.supremecourt NULL.pdf). This decision will be remembered—but in fame, or in infamy?

Lance Corporal Matthew Snyder gave his life fighting for his country in Iraq. After Phelps and his followers picketed his funeral, Snyder’s father Albert Snyder sued Phelps et al. for intentional infliction of emotional distress. A federal jury held for Snyder and awarded him 2.9 million dollars actual damages and 8 million punitive damages. But the Fourth Circuit reversed, and on 2 March 2011 the Supreme Court ruled 8-1 that Phelps’s picketing was protected by the First Amendment.

Chief Justice Roberts’s opinion is a judicial disgrace, but it is more narrow than one might initially suppose. Roberts did not rule on whether Maryland could prohibit picketing at funerals, or on whether the city could impose “time, place, and manner” restrictions like making protesters keep a certain distance from the actual funeral, not carry picket signs, not use megaphones, etc. The Court ruled only that Snyder could not maintain an action for intentional infliction of emotional distress.

Having said that, I again say that Chief Justice Roberts’s opinion is the shoddiest piece of work the Supreme Court has produced in years. The Chief Justice quotes selectively and misleadingly from Phelps’s picket signs: “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.” He therefore concludes that the content of Phelps’s signs “plainly relates to broad issues of interest to society at large, rather than matters of ‘purely private concern.’”

Roberts conveniently omits any mention of the press release Phelps sent out before the funeral, which stated that “God Almighty killed Lance Cpl. Snyder. He died in shame, not honor – for a fag nation cursed by God… . Now in Hell – sine die.” As Justice Alito notes in his excellent dissenting opinion, “This announcement guaranteed that Matthew’s funeral would be transformed into a raucous media event and began the wounding process.”

Roberts also fails to mention the online account Phelps et al. posted titled “The Burden of Marine Lance Cpl. Matthew A. Snyder. The Visit of Westboro Baptist Church to Help the Inhabitants of Maryland Connect the Dots” in which they stated that Mr. & Mrs. Albert Snyder “raised him [Matthew] for the devil,” taught him to “support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity,” that they “in supporting satanic Catholicism, taught Matthew to be an idolater,” and that by sending him to Iraq they placed him “in the cross hairs of a God that is so mad He has smoke coming from his nostrils and fire from his mouth! How dumb was that?”

And as Justice Alito observes in dissent,

Other signs would most naturally have been understood as suggesting—falsely—that Matthew was gay. Homosexuality was the theme of many of the signs. There were signs reading ‘God Hates Fags,’ ‘Semper Fi Fags,’ ‘Fags Doom Nations,’ and ‘Fag Troops.’ Id. , at 3781–3787. Another placard depicted two men engaging in anal intercourse. A reasonable bystander seeing those signs would have likely concluded that they were meant to suggest that the deceased was a homosexual.

With all of this and much more, any objective observer would conclude—as the federal jury did—that Phelps et al. aimed their attack at LCpl Snyder and his family.

It is distressing that the Rutherford Institute (http://www NULL.rutherford NULL.asp?article_id=838) and Liberty Counsel (http://www NULL.cfm?PID=14100&PRID=955) (Christian legal organizations that do a lot of good and with whom I am usually in agreement) filed amicus briefs supporting Phelps et al. I understand their concern about possible encroachments upon freedom of speech. But their briefs seem to follow the same mischaracterization as does the majority opinion, that the protest involves issues of public concern instead of a personal attack.

The John Marshall Law School Veterans Legal Support Center (http://www NULL.jmls filed an excellent amicus brief (http://www NULL.jmls NULL.pdf) in support of the Snyders. They note that funerals in general are important, but that

Military funerals are thus  particularly important, as they often provide comfort and closure in the wake of sudden, tragic, or premature deaths, namely when the deceased is a servicemember killed in combat. The military funeral serves as the emblematic final valediction for a mournful family too often robbed of the chance to say goodbye.

They add that “The right and responsibility to bury those killed in combat his been engrained in civilizations since the beginning of recorded history,” citing Thucydides’ accounts of the elaborate funerals of the Peloponnesian War and the orations of Pericles.

In Sophocles’ Antigone (http://www NULL.san NULL.beck NULL.html), two brothers of Antigone are killed fighting on opposites sides in a civil war. The victorious King Creon orders that all those who fought for him are to be buried with full military honors, while those who died fighting on the other side are to lie on the field unburied. Antigone defies the king’s command and buries her brother. When the sentry summons her to appear before King Creon, she says, “I gladly go to challenge the one who forbids us to do what is holy.” And then the following exchange takes place:

Now you answer this question briefly. Did you know there was a law forbidding this?

Of course I knew; it was publicly proclaimed.

And yet you dared to disobey the law?

Yes, for this law was not proclaimed by Zeus nor by any other of the gods. I don’t believe your edicts are able to override the laws of heaven. Unwritten laws belong to all time, and no one knows when they began. If I transgressed these laws out of fear of the arrogance of men, how could I satisfy the gods? I know I’m mortal and will die regardless of your proclamations. If I must die before my time, that may be a blessing. To one who lives in sorrow as I do, death can be a gain. To me death is just a small pain. But to leave my brother’s body unburied would be a bitter grief for me. If you think my act is foolish, it may be because a fool sees folly.

The right to bury one’s loved ones with dignity and reverence, especially those who died in battle, is an ancient, hallowed right that is part of the Law of Nature. Fred Phelps’s right to free speech is also a fundamental right. But the right to a dignified military funeral takes precedence, not over the right of free speech as a whole, but over the right to picket a military funeral.

But what about that spray-painted graffiti on the church marquee—Does God hate Fred Phelps?

The quick answer is that God is love, that He “so loved the world that He gave His only begotten Son,” (John 3:16), and that “God commendeth His love toward us, in that, while we were yet sinners, Christ died for us” (Romans 5:8). Yes, God loves even Fred Phelps.

But the Scriptures also tell us that “Was not Esau Jacob’s brother? saith the Lord; yet I loved Jacob, And I hated Esau…” (Malachi 1:2-3). In many ways Esau seems more loveable than Fred Phelps. And Psalm 139 speaks of hating the enemies of God “with perfect hatred.” I don’t believe God hates in the way we hate, but He clearly expresses His divine disapproval.

Who is Fred Phelps?  Most people assume he is some unhinged far-right fundamentalist.  In fact, the Phelps family has had close associations with Vice-President and Democratic Presidential candidate Al Gore.  Fred Phelps Jr. was a Gore delegate to the 1988 Democratic National Convention and Fred Phelps Sr. was himself a candidate for the Democratic nomination for Governor of Kansas in 1990 and for Senator in 1992.  Phelps Sr. says he provided office space and staff accommodations for Gore campaign staffers in the 1988 campaign, and Gore invited the Phelpses to the Clinton-Gore inaugurations in both 1993 and 1997 (Note that Gore opposed the gay rights agenda before it became politically-incorrect to do so).   I don’t know Fred Phelps’s motives, but if he wanted to follow a course of conduct designed to make conservative Christians look bad, he couldn’t possibly find a better way of doing that than the course he has chosen.  And Westboro claims to be an independent Baptist church, but 99.9% of Baptists would emphatically condemn his actions.

Last night my pastor preached from II Samuel 16 (http://www NULL.biblegateway, which tells of an embittered man of Saul’s household named Shimei who followed after King David, cursing him and casting stones. David’s servants wanted to cut Shimei’s head off, but David ordered them to leave him alone, because the Lord had bidden Shimei to speak and his words may be for David’s good.

Is Fred Phelps a modern Shimei?

And what finally happened to Shimei?

Find out for yourself by reading II Samuel 19 (http://www NULL.biblegateway and I Kings 2 (http://www NULL.biblegateway

Share (http://www NULL.addtoany


  1. James E. Reeves says:

    The more attention given these obnoxious Christians the more credit and sense of empowerment will be extracted from the Christian community as a whole.
    So before I start a loud rant of condemnations, let me look at the 1000 feet limit on the protesters. Now if you can see someone that far away try listening to what they are shouting, because you will have to have real good ears.
    In the New Testament a wise person said ” If it is not of God it will come to nothing, but it it is of God would you want to be seen fighting against God?”

  2. Isaiah Johnson says:

    It may make you mad but truly, we don’t view them as Shimei at all, but more like Elijah. When it comes to what they say about Rome: look at sodom and gomorrah and then look at the vatican and papal rome, look at how many children and women the papists have butchered, sodomized, and raped, and study their foul deeds in the dark ages and admit the Truth: that is one major reason why our founding fathers fled Europe. There is certainly a link between papal rome and hitler germany, the german nazi military was known to have many sodomites in high offices who commited hideous torture upon innocent helpless human life, and certainly a similitary between the papal history of encroaching and continuing to try to encroach on spiritual liberties and the efforts of sodomites to encroach into the military and into churches. For many years we were very angry with this group until we came to understand what their message is: “Repent and believe the Gospel.” If they can get you to hate and grieve for sin as much as God hates it, well then bless the Lord. But if they can get you to hate them and destroy yourself by compromising with sodomites, well then the devil wins. Ben Dupre’s brief against sodomites in the military is most excellent.

    Judge Roy Moore just should have been allowed to keep the 10 Commandments in the Courtroom. We really thank God he did not get bitter and start emotionally beating up on grieving families or picketing funerals. He is still helping the helpless, still giving the testimony of Jesus, still providing righteous testimony in far more courts than he ever did before, and still keeping the Commands of God. Overcome evil with good.

  3. Isaiah Johnson says:

    Just one of many: A former Catholic priest wanted on sex crime charges in Texas…Fiala is wanted in Edwards County, Texas, on four counts of sex crimes against children…including viciously raping at least one young boy at gunpoint….Fiala had served as a priest in Shawnee and Holton, Kan., and also worked in the Diocese of Kansas City-St. Joseph, Mo., from 1998 to 2001. Our soldiers endure enough, they should not have to endure the depth of lewdness and depravity found in Sodom and Gomorrah: Genesis 19:4-9 “But before they lay down, the men of the city, even the men of Sodom, compassed the house round, both old and young, all the people from every quarter: And they called unto Lot, and said unto him, Where are the men which came in to thee this night? Bring them out unto us, that we may know them…”.And they said again, “This one fellow came in to sojourn, and he will needs be a judge: now will we deal worse with thee than with them. And they pressed sore upon the man, even Lot, and came near to break the door down.” “Because the cry of Sodom and Gomorrah is great, and because their sin is very grievous.” The sodomites perceive what is theirs as theirs, and what is yours, as theirs. A lifestyle led by that satanic principality and philosophy tends to care less and less about the neighbor and more about gratifying lust. Visitors to Sodom and Gomorrah were indeed treated with a lack of compassion and ethics, and oftentimes, treated outright sadistically. One vile violent incident and one victim after another: the sadistic nature of Sodom and Gomorrah manifests itself especially in how they expose themselves to and abuse children. It is the cries of the children that reach God.

    The pervasive corruption found within the cities of the plain, and especially within the walls of their churches and courts. Their clergy abuse their people for tithes, then sodomize their children, and charge the parents for their own criminal abominations. Many of the judges side with the sodomites. Throughout history, sodom and gomorrah have been used as metaphors for rape, homosexuality, sexual immorality, and sexual deviance. Jude 1:7: “Even as Sodom and Gomorrah, and the cities about them in like manner, giving themselves over to fornication and going after strange flesh, are set forth for an example…” Isaiah had this to say about the sins of sodom. “..they parade their sin like Sodom…” (Is. 3:9)

    Obviously, they have no fear of God. They do not revere His commands, nor walk in His statutes. They are caught up in their own riches and wealth, and are perverted and arrogant. Jeremiah compared the sins of Jerusalem in his day to those of Sodom and Gomorrah in Jeremiah 23:14. “And among the prophets of Jerusalem I have seen something horrible: They commit adultery and live a lie. They strengthen the hands of evildoers, so that no one turns from his wickedness. They are all like Sodom to me; and their people..are like Gomorrah.”

    The sodomites were an unruly mob who pressed upon Lot, apparently at the point of breaking into his house forcibly, and taking the men by any means necessary. As nazi germany has proven, not only are the sodomites lustful and abominable, but very bloodthirsty as well.

  4. James E. Reeves says:

    So when and if these blood thirsty, lustful, Nazi, sinners repent should we Christians give them the right hand of full fellowship?
    Germans, Jews, Muslims, Chinese, Hindus, Russians, or Americans may be abominable to God by each individuals actions and thoughts.
    So that the priest and rabbi are as accountable as the most abominable murderer. Who can be saved ?
    Is there really only one way?
    The Jews believed in one that would come to heal the blind and preform acts of righteous judgement, and present a new way. Jesus’ followers were called the people of the Way and Jesus said “I am the Way”. Then as the old Jewish system became obsolete Jews began to persecute Christians like Stephen, Peter and Paul until they were dispersed to other places like Antioch where they were called by a new name “Christian.”

  5. James E. Reeves says:

    In keeping the context Jewish because Jesus was their Jewish messiah as all Christians would agree, a clear meaning of what symbols should remain Jewish and what should be taken secularly literal is important. Terms like sun, moon, stars,change the timing of how we may interpret a scripture in the Jewish setting of the first Christians.

  6. R.W. says:

    I find it EXTREMELY distressing that Judge Moore is fine with restricting free speech. The WBC were 1000ft away from the funeral in a place the police said they could be. Mr. Snyder admitted he had no idea what was going on there until he saw it on t.v. afterward. This will surely give me pause supporting Judge Moore in his presidential endeavors. Perhaps he’s not everything he claims to be.

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