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 members.

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 flag-mutilation law.

"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 Bellevue.

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 state.

Judges do not comment on pending cases.

Church officials did not respond to a message seeking comment in time for this story.