It's a loss for the Topeka, Kan.-based Westboro Baptist Church, whose members are often seen at military funerals claiming the deaths of U.S. troops overseas are part of God's punishment for the nation's tolerance of homosexuality.
Friday's ruling by the 6th U.S. Circuit Court of Appeals upheld a portion of a lower court's ruling on the law, which calls for a 300-foot buffer zone around a cemetery, funeral home, or place of worship.
In 2006 the Ohio legislature amended a state law prohibiting protests at funerals which had been on the books since 1957, establishing the 300-foot zone and expanding the definition of protests to include "any action that is disruptive or undertaken to disrupt or disturb a funeral or burial service or a funeral procession."
Plaintiff Shirley L. Phelps-Roper, an attorney and daughter of church leader Fred Phelps, had claimed that the Ohio restrictions contradicted the First Amendment, being overbroad regulations of speech as well as a criminalization of speech.
She also said the Ohio law effectively denied members the opportunity to preach the message of their church - that God is punishing America for the sin of homosexuality by killing Americans, from soldiers and mine workers to Amish school girls.
Against arguments that people cannot avoid the intrusions upon their privacy imposed by such protests without sacrificing their right to mourn, Phelps-Rogers had responded that attendance at a burial service is voluntary and that attendees could merely "avert their eyes."
The U.S. District Court had split in its original decision, finding part of the Funeral Procession Provision to be unconstitutionally overbroad.
However, the appeals court held that attendance at a funeral or burial service cannot be dismissed as nothing more than a "voluntary" activity.
"As Respondents assert, 'deep tradition and social obligation, quite apart from the emotional support the grieving require,' compel individuals to attend a funeral or burial service. Furthermore, if individuals 'want to take part in an event memorializing the deceased, they must go to the place designated for the memorial event.' Friends and family of the deceased should not be expected to opt-out from attending their loved one's funeral or burial service. …The appeals court also said there was no merit to Phelps-Rogers' contention that the Funeral Protest Provision leaves church members without ample alternative channels of communication: "As Respondents argue, Phelps-Roper has an 'international audience with her website, where her message is seen by millions' and she has appeared on national radio and television."
"Accordingly, we agree with the district court's conclusion that Ohio has an important interest in the protection of funeral attendees, because a deceased's survivors have a privacy right 'in the character and memory of the deceased.'"
Last October, a federal jury returned a verdict against the Westboro Baptist Church, awarding nearly $11 million in compensatory and punitive damages to the father of a Marine killed in Iraq after church members demonstrated at the March 2006 funeral.
As Lance Cpl. Matthew Snyder was laid to rest, church members carried signs reading "Thank God for dead soldiers" and "God hates fags." There were also posters depicting stick figures engaged in acts of sodomy. The church also posted material about Lance Cpl. Snyder, attacking his famiily and their Catholicism, on their Web site, godhatesamerica.com.
Jurors were instructed that, to find for the plaintiff, they would have to find the church's conduct an extreme, outrageous, and intentional infliction of emotional distress "highly offensive to a reasonable person.
Attorney Craig Trebilcock had urged jurors to determine an amount "that says, 'Don't do this in Maryland again. Do not bring your circus of hate to Maryland again.'"
In February a federal district judge reduced the jury's award to $5 million.