The Rev. Fred Phelps, his family and members of the Westboro Baptist Church of Topeka, Kan., picket military funerals, claiming the deaths are caused by toleration of homosexuals by the United States and its military.
Phelps doesn't target gay soldiers, just the funerals of service members killed in action.
In 2006, Phelps and others picketed the Maryland funeral of Matthew Snyder, a 20-year-old U.S. Marine killed in the line of duty in Iraq. The protesters carried signs saying, among other things, "Thank God for dead soldiers," "God hates fags" and "You're going to hell." They also posted an "epic" on their Web site titled, "The Burden of Marine Lance Cpl. Matthew A. Snyder."
Snyder's shocked family sued and won a jury verdict. A federal judge upheld the verdict and a $5 million damages award, but a federal appeals court reversed, saying the protesters were using "rhetorical hyperbole" absolutely protected by the First Amendment.
In argument Wednesday, the Supreme Court justices seemed more concerned with emotion than the law, SCOTUSBLOG.com reported. Justice Ruth Bader Ginsburg said from the bench the case was "about exploiting a private family's grief. Why should the First Amendment tolerate that?"
Conservative Justices Samuel Alito and Antonin Scalia recalled ugly protests against soldiers who had died in the Vietnam War.
Another conservative, Chief Justice John Roberts, repeatedly suggested the Westboro Baptist funeral protesters had singled out the dead soldier's family and the funeral to achieve "maximum publicity," not to discuss the war and its moral consequences, SCOTUSBLOG reported.
The church has claimed that the Marine's father was a "limited purpose public figure" and a fair target for protest.
Roberts also was openly skeptical of the church's claim that "it is not an issue of seeking maximum publicity; it was using a public platform to bring a public message."
But comments from the bench do not always indicate how the justices will rule. The Supreme Court should hand down a decision in the case, Snyder vs. Phelps, in the next few months.