Defending the Enemy

Shirley Roper Phelps protesting. (Credit: Jvdimaas)

All these years, I have been reading ACLU press releases without ever knowing that the organization—100 years old this year—was inspired in St. Louis. Public defender Patrick Brayer lays out the history here, describing how Roger Nash Baldwin came to St. Louis fresh from Harvard, on the advice of a future U.S. Supreme Court justice who thought he would find more of democracy’s raw workings in this racially conflicted city than in staid Boston. Baldwin went on to reform juvenile justice, taught in Wash. U.’s sociology department, took on civic leadership, and foiled the Catholic Church by making sure Margaret Sanger had a place to speak freely about birth control.

Then he went to New York and cofounded the ACLU, which has been fighting for juvenile justice, women’s rights, civil rights, and the Bill of Rights ever since. The current exhibit at Washington University’s Olin Library unfolds the timeline like a bolt of fabric: You see the pattern repeat: from Sanger to today’s fight for women’s reproductive rights; from closing the old city jail (a seventeen-year negotiation) to blasting conditions in the workhouse today; from early struggles to end police brutality to recent efforts to unshackle pregnant female prisoners.

But the real tests of commitment are the cases where they defend, oh, the Ku Klux Klan’s right to freedom of speech, or neo-Nazis’ right to demonstrate, or the right of Fred Phelps and his Westboro Baptist Church—which the Southern Poverty Law Center calls “arguably the most obnoxious and rabid hate group in America”—to protest at public funerals.

Westboro made “God hates fags” its slogan. Church members were infamous for protesting at the funerals of men who died from AIDS. But when they began protesting at the funerals of soldiers, states took notice—and Missouri passed a law so broad it would have stopped them (wanted to stop them) from protesting altogether. Not only did they have to stay 300 feet away from a funeral, but they had to stay 300 feet from the procession, wherever it happened to meander. All the mourners would have to do was reroute to get the protesters arrested.

Tony Rothert, legal director of the St. Louis ACLU, had just joined the ACLU staff when Missouri passed the law.

Tony Rothert is gay.

He knew all about Westboro; he had spent a few summers in Kansas during college, and the protests had sickened and infuriated him. He remembered, sharp as yesterday, what it felt like to hide in an airless closet and overhear cruel remarks about gay people.

But he also cared about free speech, and the state legislature had overreached so far, the First Amendment violation was obvious to him.

ACLU lawyers testified against the new law in Jefferson City. In fact, they and the Phelps family were the only people testifying against it. Soon after, Fred’s daughter, Shirley Phelps-Roper—once arrested for letting her son trample an American flag at the funeral of a soldier killed in combat—called to ask if the ACLU would take their case.

These are despicable people, Rothert thought, but they should have First Amendment rights. So he drove to Topeka, Kansas, to visit Westboro Baptist Church. A church that once issued a news release that said, “Filthy sodomites crave legitimacy as dogs eating their own vomit & sows wallowing in their own feces crave unconditional love.”

Okay then. He took a deep breath and started calling on people.

Phelps’s extended family lived in the church compound, their houses arranged in a box around a central backyard. Rothert talked at length with at least twenty people to see who he wanted to depose. He never came right out and said he was gay, but he knew they knew. Several even making a point of telling him that they thought anti-gay discrimination was wrong. (So, of course, was homosexuality, but they did not think someone should lose their job as well as burn in hell.)

After one long session of depositions in Jefferson City, one of the Phelpses suggested they all have dinner and asked where they should go. Rothert carefully suggested a buffet, admitting, “I worry about what people will do to your food.” They laughed; they had never even thought of the possibility.

They knew they were reviled, though. The opposition only reinforced their belief that they were doing God’s work. He sensed a sincerity in their beliefs, and he wanted to know if he was being tricked. So when one of Fred’s sons broke with the church, then spoke in St. Louis, Rothert went up afterward and introduced himself.

It was all true, the son assured him. The family was completely sincere.

Next, Rothert learned that Fred had been a committed civil-rights lawyer, and his church members staunchly supported racial civil rights. Their vitriol toward homosexuals came from a belief that not only were they doing things God never intended with their bodies, but they were putting their bodies first, above their souls.

I try to imagine Rothert after such conversations, maybe punching a bag at the gym or tossing back Scotch. Instead, he says, he read a lot about God and thought a lot about religion and wound up an atheist. But he also wound up with an acute awareness of just how complicated human beings are.

I would have blurted on first meeting, “Do you have to do this to people at their loved ones’ funerals?” But he is a patient man, and over time, he realized there was more reason than sadism. The Phelpses felt they were prophets, sounding a trumpet of warning, and the times when people were thinking about life and death and salvation were the times they might listen.

Initially, Rothert assumed that Westboro also protested at funerals of celebs, government officials, and soldiers to make the point that Americans were paying for the country’s acceptance of homosexuality. Then he realized that Westboro saw the extra attention paid to rock stars, politicians, and veterans as a form of idolatry, putting people above God.

Armed with at least an intellectual understanding of beliefs he still found vile, Rothert forged ahead, strategizing for trial. The American Center for Law and Justice filed a friend of the court brief against Westboro, calling the protests “a grotesque intrusion on the privacy rights of bereaved families and an insult to the memories of those who ‘gave the last full measure of devotion.’”

Rothert rolled his eyes. Jay Sekulow, chief counsel for the ACLJ (and currently the coordinator of President Trump’s personal legal team), had said just the opposite after a gay teenager, Matthew Shepard, was beaten, tortured, and left to die. Westboro protested at his funeral. When there was an outcry, Sekulow insisted that there should be no “funeral exception to the First Amendment” and said such protests were constitutionally protected free speech.

“Like the State of Missouri,” Rothert wrote in his response, “ACLJ came to favor protest bans when their content changed.” Soldiers killed in combat deserved respect. Men who died of AIDS and teens who died from torture…did not. The hypocrisy was stunning.

It took six years of active litigation, but the ACLU won the case. The court upheld the 300-foot buffer for funerals but struck down the buffer around processions. Their freedom of speech and right of assembly have been preserved, and they can still protest at funerals—from a legal distance that happens to be the height of the Statue of Liberty, if you lay her down on the ground.

It is an important but uncomfortable resolution. Rothert says this case—“in which the interests of Westboro and the ACLU aligned, probably for the first and last time”—only reinforced the importance of the First Amendment, “because the government will take low-hanging fruit, but once they can pass a law, they are going to use it against anyone.” If that law had stayed in effect, he adds, a similar law could have been used to stop the Ferguson protests.

In the ACLU’s experience, ideological disagreements are far more effectively worked out in the community. Still, I tense when I read that two Westboro members protested transgender inclusion at a school in Hawaii. They carried signs that read “God made you male or female. Obey him,” and a woman from the church vilified people who “live like the very devil himself.” All I can think of is the pain for those schoolkids. In this moment, if someone put me on the Supreme Court, I would stop these protests for good.

Then I read on. More than 100 counter-protesters showed up and drowned them out, waving pink and blue trans flags, rainbow flags, and signs that read “Love”; “Equal Rights for Everyone”; “Pride”; “Stop the Hate”; and “I’m Not With These Jerks.”

Democracy, given free rein.

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