Editor’s note: Douglas County Judge Joseph Caniglia refused on Aug. 4 to dismiss the case against Shirley Phelps-Roper, clearing the way for an Aug. 23 trial in Sarpy County Court. Caniglia is presiding over the case after two Sarpy County judges were removed from the case. Meanwhile, Phelps-Roper filed a federal lawsuit Aug. 9 accusing Sarpy County Attorney Lee Polikov, as well as other prosecutors in the office, of violating her constitutional rights “by investigating her for protected expressive activity,” among other things.
LINCOLN, Neb. — Nebraska Attorney General Jon Bruning and other officials
have agreed that the state's flag-mutilation law is unconstitutional, siding
with a Kansas-based church that stages protests outside funerals of military
The stance by Bruning and others, taken July 19 in a conference call with a
federal judge, cleared the way for the judge to issue a permanent injunction
preventing the state from enforcing the law.
Shirley Phelps-Roper and her daughter, Megan Phelps-Roper, both members of
Westboro Baptist Church, had filed separate lawsuits challenging the
constitutionality of Nebraska's flag law, which makes it illegal to
intentionally cast "contempt or ridicule" upon an American or Nebraska flag by
mutilating, defacing, defiling, burning or trampling it.
Even though a final judgment in Shirley Phelps-Roper’s case is pending,
Bruning and others' agreement that the law is unconstitutional essentially
settles the flag-desecration issue and leaves the state without a
"I'm disappointed they rolled over so easy," said Sarpy County Attorney Lee
Polikov, who had charged Shirley Phelps-Roper with flag mutilation. "They seemed
to have neglected our concern in the fight."
Bruning said the U.S. Supreme Court ruling two decades ago in Texas v.
Johnson (1989) clearly rendered Nebraska's law unconstitutional and it
was just a matter of time before a lawsuit was filed that would result in the
1977 state law being overturned.
"Any first-year law student understands Nebraska has to comply with rulings
of the U.S. Supreme Court," Bruning said when told of Polikov's comments.
"I'm not going to waste the resources of the state defending a law the
Supreme Court has clearly said is unconstitutional," he added.
U.S. District Judge Richard Kopf, who issued the permanent injunction July 19
in Megan Phelps-Roper’s case, indicated his belief that the law was
unconstitutional last week when he issued a temporary injunction preventing the
state from enforcing the law against the church. Kopf said then that "the First
Amendment trumps the citizenry's preference for patriotism."
Polikov said Kopf's decision interfered with state-court proceedings and the
case should have been allowed to continue. But he dropped the charges of
flag-mutilation and contributing to the delinquency of a minor.
Shirley Phelps-Roper still faces charges of child abuse and disturbing the
peace related to her participation in a 2007 protest at a soldier's funeral in
Westboro members travel around the country protesting at soldiers' funerals
because they believe U.S. troop deaths are punishment for the nation's tolerance
of homosexuality. Members often trample on, wear and display the U.S. flag
upside-down as part of their protests.
Polikov said he was disappointed in what he called Kopf's interference in the
case against Shirley Phelps-Roper, which started in state courts. Bruning said
the judge's decision was consistent with accepted judicial practices and
described Kopf as one of the most respected judges in the history of the
Judges do not comment on pending cases.
Church officials did not respond to a message seeking comment in time for