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Response from Charles M. Kester

Discussion Question: Did the Supreme Court Get it Right with Snyder v. Phelps?

The Supreme Court recently ruled 8 to 1 that members of the Topeka, Kansas-based Westboro Baptist Church are entitled to stage their controversial antigay protests even when they cause substantial injury to family members and others attending the funeral of a loved one.

Chief Justice John Roberts wrote the majority opinion stating, "What Westboro said, in the whole context of how and where it chose to say it, is entitled to 'special protection' under the First Amendment and that protection cannot be overcome by a jury finding that the picketing was outrageous."

Do you agree with lone dissenter Justice Samuel Alito statement that "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," or did the Supreme Court get it right?


"I disapprove of what you say, but will defend to the death your right to say it." This quote is attributed (some say mis-attributed) to Voltaire, the Eighteenth Century French philosopher who was profoundly influential on Thomas Jefferson. That is the same Thomas Jefferson who was instrumental in the passage of the 1786 Virginia Statute for Religious Freedom and our third American President. As President, one of his less noticed (but no less important) accomplishments was discontinuing the practice of his predecessors of proclaiming days of (religious) feasting and fasting. Jefferson also, in an 1802 letter to some Baptists in Danbury, Connecticut, coined the "wall of separation" language that has become the common parlance in the discussion of church-state relations.

It may seem strange to mention these things in the context, but I do so for three reasons. First, I think most mainstream legal thinkers will agree that the Supreme Court got it right in Snyder v. Phelps. Indeed, the simple fact that seven Supreme Court Justices agreed on a single opinion would indicate that this is a relatively straightforward case. At the risk of oversimplifying things, any time that Justices Scalia and Thomas agree not only with the result, but with the same opinion, as Justices Kagan and Sotomayor and that opinion agrees with (affirms) the Court of Appeals, that should indicate that there is little significant divergence of legal opinion on the issue. So if it is so straightforward, why did the Supreme Court bother?

That leads me to my second point. Over the past few weeks, I have observed various commentators describe Snyder v. Phelps as a conflict between speech and religion. In the view of these commentators, there is a conflict between the free speech rights of the members of the Westboro Baptist Church to stand on the sidewalk and spew their vitriolic speech and the religious rights of the friends, family and associates Marine Lance Corporal Matthew Snyder to attend a religious service. This is a false conflict. It has long been the law in America that one remedy for undesired public speech, policies, or behavior is to speak in opposition. There has also been a long tradition to exercise that right of speech in a manner that is straightforward and blunt, even to the point of obnoxiousness. In short, there is no listener's right not to be offended. Anyone who doubts this should spend a few minutes Googling the public rhetoric of the Eighteenth and Nineteenth Centuries. The right to free exercise (of both speech and religion) is not a right to be free from offensive expressions by persons holding different views.

This brings me to the third point, and the real issue. The Supreme Court often decides cases that require the careful and delicate balancing of competing policies or constituencies. This particular case was not really one of them. However, it is not for that reason any less significant. Just because Snyder v. Phelps was easy to decide does not mean that it is for that reason any less important. While my practice has frequently involved me in avant garde First Amendment discussions and legitimate disputes about the reasons for government actions, cases like Snyder constantly recur, and are often the most insidious threat to our first Amendment freedoms, as the following short sampling of cases that I have worked on will illustrate: A citizen was criminally prosecuted for making a statement at the meeting of the city council of the city in which she resided. (She ultimately prevailed.) Members of a local club were literally banned from all city property, including the city sidewalks. (They prevailed.) But (and here is the insidious part), a local preacher who was perhaps overzealous in his witnessing efforts was convicted of criminal harassment. He appealed all the way to the Supreme Court without success. Today, thanks to Snyder v. Phelps, I think the result in his case might well be different.

To bring us full circle, I do not agree with the speech of the Westboro Baptist Church members, but one of the great things about America is that they have the right to go out and make fools of themselves in public if that is what they want to do. That is one of the "glories" of free speech. Were I to have the opportunity to speak with the Snyders, I would suggest to them that - as paradoxical as it may sound - they view the Supreme Court decision (and for that matter, the activities of the Westboro Baptist Church members) as one of the greatest memorials to their sacrifice.

Photo of Charles M. Kester

Author: Charles M. Kester

Managing Member, Kester Law Firm

Charles M. Kester is the managing member of the Kester Law Firm, with an active litigation practice in the areas of civil rights, labor and employment law, including religious discrimination and accommodation. He regularly appears before a wide range of state and federal agencies, as well as state and federal trial and appellate courts. Mr. Kester has published in legal journals and has lectured extensively on employment law issues in public and private employment. He is a member of numerous professional organizations and Bar Associations, including the National Employment Lawyers Association, and has served as an officer and Chair of the Labor and Employment Law Section of the Arkansas Bar Association. Mr. Kester served as lead trial and appellate counsel in Sturgill v. UPS, which was featured in the November/December 2006 and January/February 2009 editions of Liberty.

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