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Trial begins in Kansas church's lawsuit challenging Nebraska law to curb funeral protests

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OMAHA, Nebraska — A Westboro Baptist Church member testified Tuesday that law enforcement officials often harass and even threaten members of her group for exercising their right to protest at Nebraska funerals.

Rebekah Phelps-Davis said on the first day of trial in Westboro's 2009 lawsuit challenging a Nebraska law limiting funeral protests that a law requiring demonstrators to stay at least 500 feet from a funeral service is selectively enforced, making it unconstitutional. The 2006 law initially created a 300-foot buffer, but that was later extended.

The Topeka, Kansas-based church protests at funerals throughout the country using anti-gay chants and placards because it believes God is killing U.S. military members and others for defending a nation that tolerates homosexuality.

Phelps-Davis said that in Nebraska, church members are often kept much farther from funeral services than counter-protesters, who are allowed to get as close as they want.

She testified that it's her job to contact law enforcement in the town or city where the church plans to protest. She first sends a letter to local law enforcement, then usually follows up with a phone call. After the protest, she sends law enforcement a thank-you note.

In 2006, she said, she contacted someone in the Merrick County Sheriff's Office to discuss a planned protest.

"He told me that if we step one foot in Merrick County, they would arrest us — that he has plenty of enforcement to carry that out," she said. When she protested that Westboro members couldn't be arrested for simply coming into the county, she said she was told, "We'll get you for something — a broken tail light, disturbing the peace — something."

The church did not picket at the Merrick County funeral because of the threat of arrest, Phelps-Davis said.

Under cross-examination, Assistant Nebraska Attorney General James Smith noted that all of Phelps-Davis' letters ask law enforcement to set up buffer zones between Westboro protesters and counter-protesters, implying that the request is no different than the state law's buffer zone between protesters and funeral goers.

Westboro has been protesting at funerals and other events around the country since 1991, but only drew widespread attention after it began protesting at the funerals of fallen soldiers in the post-9/11 wars in Afghanistan and Iraq.

Local jurisdictions and states soon began enacting laws to try to curtail such protests. Currently, 44 states and Congress have passed funeral-picketing laws, according to the First Amendment Center at Vanderbilt University.

Westboro, which is led by sisters Shirley and Margie Phelps-Roper, who are lawyers and daughters of the group's late founder, has fought the efforts through the courts with much success. That includes Westboro's successful constitutional challenge in 2010 to Nebraska's ban on flag mutilation, under which Shirley Phelps-Roper was arrested in 2007 for wearing a U.S. flag as a skirt that dragged the ground.

Two federal appeals courts have upheld laws in Missouri and Ohio that keep protesters 300 feet from funeral sites, but struck down similar provisions to keep protesters from funeral processions.

A U.S. Supreme Court ruling in 2011 supported Westboro's right to protest at funeral services. That decision came in a lawsuit brought by the family of fallen Marine Matthew Snyder against Westboro after the church's members protested at Snyder's funeral.

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