Indiana University Bloomington

Civil Liberties or Civility? The Westboro Baptist Church and the First Amendment

Claire Bessette, history, international studies, eurasian studies

Advisor: Professor Ed Linenthal

This paper, which studies the influence of the Westboro Baptist Church, has been excerpted from a larger thesis written in December 2016 for fulfillment of a Bachelor of Arts degree with Honors in History on the issues relating to fringe religions in the United States.  In that paper — “That’s Just the American Way”: Fringe Religions in the United States — I also tracked the legacies of the Peoples Temple of the Disciples of Jesus Christ, the Branch Davidians, and the Church of Scientology.

In a speech given at the site of the former World Trade Center in New York City in August 2010, President Barack Obama declared, “This is America. And our commitment to religious freedom must be unshakable. The principle that people of all faiths are welcome in this country, and that they will not be treated differently by their government, is essential to who we are.”  As eloquently articulated by President Obama, the United States of America has self-identified as a beacon of religious liberty from its foundations, even enshrining the freedom of religious practice in the First Amendment to the United States Constitution.  But religiosity in the United States is largely dominated by recognizably mainstream religious groups, with 78.4% of Americans identifying as Christian as of 2007.

The goal of this study is to explore the historical and theological foundations of the Westboro Baptist Church, which operates on the fringe of mainstream Christian religiosity and which continues to exert much more influence than their membership size would lead one to expect.  For the purpose of this thesis, the word ‘influence’ will be used to describe the affects and impact of the Westboro Baptist Church on American legislation in challenging the boundaries of the First Amendment.

The Westboro Baptist Church is one of the most visible fringe religious groups in contemporary America.  And founder Fred Phelps likes it that way.  But Phelps and his family members who make up the overwhelming majority of the Westboro Baptist Church’s congregation did not begin their public lives as Westboro Baptist members.  In fact, Phelps — who was born in 1929 in Meridian, Mississippi — began his life as a Methodist.  But in the summer of 1947 when he was 18 years old, Phelps and a friend decided to attend a religious revival.  Here, Phelps was entranced by the preaching style of the minister and experienced a religious conversion, deciding to switch religious affiliations from Methodist to Baptist.

While Phelps was in the midst of discovering the Baptist religion, he graduated from law school at Washburn University and made a career for himself as a prominent civil rights attorney in Topeka and Wichita, Kansas.  Phelps spent the majority of his legal career representing African Americans who were the victims of police abuse  and other high-profile clients like future Chicago Bears running back Gale Sayers, who had been arrested for protesting for civil rights at the University of Kansas. Indeed, D.D. Miller, President of the Wichita-branch of the National Association for the Advancement of Colored People, noted that “before Fred Phelps came on the scene, we couldn’t get an attorney in Wichita to touch a civil rights case.”  While Phelps’ dedication to civil rights may seem contradictory given what he would later preach in the Westboro Baptist Church, Phelps explained his commitment by arguing, “the Scripture doesn’t support racism. God never says ‘though shalt not be black.’”  While Phelps’ legal career ended in 1979 after he perjured himself, the Westboro Baptist Church still maintains active protests against the KKK and other white supremacist groups.

To understand the theological underpinnings of the Westboro Baptist Church, it is necessary to understand the roots of the Primitive Baptist religion.  The Westboro Baptist Church self-identifies as Primitive Baptist, although this characterization is vigorously rejected by other Primitive Baptists.  Moreover, contemporary mainstream Baptists who oppose the teachings of the Westboro Baptist Church are quick to point out that during his conversion, Phelps was never legitimately baptized as either a Southern Baptist or a Primitive Baptist.  In the Primitive Baptist tradition, ministers must be baptized by Primitive Baptist ministers who were baptized by other Primitive Baptist ministers and so forth.  Because Phelps lacks this baptismal legacy, critics argue that his ministry should not be recognized.

Be that as it may, the American Primitive Baptist religion can trace its roots to the Protestant Reformation, specifically to the Anabaptist Movement that criticized the Roman Catholic Church’s practice of infant baptism.  As a denomination of the Baptist religion, Primitive Baptists originated out of a split from American Baptists in 1832, although they claim their church began spiritually with the birth of Jesus Christ.  A hallmark of the Primitive Baptist church is its theological connections to Calvinism.  Echoing the lasting influence of Puritanism in the United States, Calvinists and Primitive Baptists stress that salvation is predestined by God, and so nothing an individual does will change the status of where they will spend eternity (either heaven or hell).  Naturally, Calvinists and Primitive Baptists view themselves as the only ones destined to heaven, while all others will be sent to hell.  Other essential Calvinist and Primitive Baptist messages include that the world is wholly wicked, that there are few opportunities to repent for this wickedness, that excommunication and isolation from those who refuse to repent is essential to the survival of the religion, and that God is a vengeful God.  It is important to understand that these teachings stand in stark contrast to much of mainstream American Christianity, especially the idea of a vengeful God.  However, this us-against-the-world isolationist ideology allows Primitive Baptists to “place the oppressive and morally defiled outside society in sharp contrast to [their] community of virtuous insiders. A sort of ‘wall of virtue’ is thereby constructed, separating the saved, free, equal (before God or before history), and morally superior enclave from the hither-to tempting central community.”

Now armed with the theological foundations of the Primitive Baptist religion, one can begin to discuss the origins of the Westboro Baptist Church.  The Westboro Baptist Church began as a new branch of the East Side Baptist Church in the Westboro neighborhood of Topeka, Kansas in November 1955.  Fred Phelps was ordained pastor.  In helming the Westboro Baptist Church, Phelps quickly abandoned the Arminianism of the East Side Baptist Church and adopted both the identification of the Primitive Baptist religion and the hyper-strict, fire-and-brimstone style of Calvinism.

One of the activities most important to the Westboro Baptist Church is picketing, which began in earnest in 1991.  The Westboro Baptist Church picketing began after a young Phelps family member was allegedly propositioned for sex in Topeka’s Gage Park, a public park known as a favorite haunt for Topeka’s gay male community.  Fred Phelps and the Westboro Baptist Church, who felt that the city did nothing to address their complaints, thus began the practice of highly-visible anti-gay protesting for which they are known.

To this day, many protest signs utilize the signature phrase ‘God Hates Fags’ to express outrage.  However, the Westboro Baptist Church maintains that it is not the use of slur ‘fag’ that upsets people, but rather “the public is most upset that its image of God as loving and merciful is challenged by the idea that God can ‘hate.’”  Although the Westboro Baptist Church lists 701 Bible passages that apparently refute the idea that God is loving, the most crucial Biblical idea comes from Leviticus 18:22, “Thou shalt not lie with mankind, as with womankind: it is abomination.”  Integrating the Calvinist belief in predestination, the Westboro Baptist Church argues that “God [does not] hate people because they are gay but rather…that they are gay because God hates them” and has already damned them to eternity in hell.

The Westboro Baptist Church’s anti-gay picketing came to draw national attention and ire in 1998 when the congregation picketed the funeral of University of Wyoming student Matthew Shepard.  Shepard — who was gay — was beaten and left to die by two locals who hated his sexual orientation.  The Westboro Baptist Church picketed Shepard’s funeral with the ‘God Hates Fags’ signs, created an online ‘perpetual memorial’ on their website that includes imagery of Shepard burning in hell, and bragged to national media that Phelps’ teachings on homosexuality had been proven by Shepard’s murder.

As the Westboro Baptist Church continued to rise to national prominence, they began to expand their protests.  In 2005, the Church began picketing at the funerals of American soldiers, rejoicing that God was purposefully killing American soldiers because of America’s tolerant stance on homosexuality.

Before beginning any level of analysis, it must be noted that the term ‘cult’ is extraordinarily problematic, as there is no codified definition of a cult in the American legal system.  Some religious scholars and legal advocates have attempted to replace the term ‘cult’ with the distinction of ‘new religious movements.’  As author Lawrence Wright argues, the term ‘new religious movement’:

was employed to replace the world ‘cult,’ because these academics found no reliable way of distinguishing a cult from a religion…In the courtroom setting, the casual distinctions that many people often make about cults and brainwashing have proven to be difficult to sustain, as these experts pose telling comparison with the history of mainstream religious, whose practices and rituals have long since been folded into a broad cultural acceptance.

The insularity of the Westboro Baptist Church combined with its extremely conservative theology has often led critics to label the Church a cult, although parishioners are remarkably forthcoming about their religious practices and lifestyles.  As of July 2010, the Westboro Baptist Church congregation comprises about 60 members, almost all of whom are from the Phelps family.  In addition, members are required to live within walking distance of the Church, and lifestyle choices like weight loss and diet, car purchases, college majors, and job searches are often controlled by church elders.  Furthermore, the Westboro Baptist Church practices a policy of total excommunication for members who dissent from Church teachings or decide to leave the Church.  For instance, Mark Phelps, son of Fred Phelps, recalls the final time he spoke to his father upon announcing his decision to leave the Westboro Baptist Church.  Fred Phelps told him, ‘I hope God kills you.’

The cult accusations almost never stem from fears that the Westboro Baptist Church might initiate another event like the mass suicide at Jonestown by the Peoples Temple of the Disciples of Jesus Christ, or construct a sexually-deviant compound that results in another firestorm like the Branch Davidians at Waco, or engage in widespread physical abuse like the Church of Scientology.  Rather, most of criticisms hurled at the Westboro Baptist Church seem to come from groups eager to differentiate themselves from the perceived hateful rhetoric that the Church employs, thereby making their theologies or political stances look better in contrast.  In response to the cult denunciations, Westboro Baptist parishioners claim that they believe their actions come from a place of love because they are the inheritors of the “true apostolic church.” Moreover, while many elements of Westboro Baptist members’ lives are dictated by a dedication to a Biblical conservatism, scholar Rebecca Barrett-Fox notes that “Westboro Baptists likely have more freedom in behavior than do participants in other conservative churches…like the Amish, Hasidic Jews, [and] fundamentalist Latter-Day Saints…which often demand that women wear skirts or dresses, homeschool their children, and prohibit engagement with popular culture.”

Indeed, one of the most interesting factors in the experience of the Westboro Baptist Church are the contradictions between a reliance on and shunning of mainstream America.  The Westboro Baptist Church has to insure that both their members and critics share a bank of knowledge of mainstream American culture in order to differentiate themselves as a more viable option.  As a case in point, the Westboro Baptists created a song and music video entitled “Read It,” which discusses God’s hatred of nonbelievers.  “Read It” is a parody of Michael Jackson’s song “Beat It.” But the Westboro Baptist Church — in a dramatic misreading of public perception — claims that people are not angry about the message or the language they invoke, but rather that the music video uses the dance moves from Michael Jackson’s song “Thriller” to the music from “Beat It.”

The Westboro Baptist Church seems to delight in these tensions with mainstream Christianity, as it solidifies the Church’s belief that they are the only ones who have been predestined to eternal salvation.  Shirley Phelps-Roper, daughter of Fred Phelps, writes that the Westboro Baptist Church is “not really interested in a dialogue with you demon-posessed [sic] perverts.  We are not out to change your minds, win your soul to Jesus, agree to disagree, find common ground upon which to build a meaningful long-term relationship, or any of your other euphemisms for compromising in our stance on the Word of God.”

However, the Westboro Baptist Church’s most important legacy has come through challenging the boundaries of the First Amendment to the United States Constitution in efforts to establish their preaching as legitimate.  For reference, the First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Perhaps the most noteworthy results of the Westboro Baptist Church’s actions are the numerous state and federal legislative responses.  In 2006, President George Bush signed into law the Respect for America’s Fallen Heroes Act (U.S. law 109-228), which outlawed funeral picketing in American national cemeteries.  As of March 2009, 41 states had passed similar legislation limiting or banning funeral pickets.  In October 2009, President Barack Obama signed into law the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which among other provisions, expanded American federal hate-crime laws to include attacks based on sexual orientation.

But arguably the most important legislative response to the Westboro Baptist Church came with 2010 case Snyder v. Phelps, which eventually rose to the level of the United States Supreme Court.  Albert Snyder, the father of a deceased United States Marine, sued Phelps and the Westboro Baptist Church for “intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy” after they had picketed at his son’s funeral.  Initially, Snyder won $10.9 million in damages from the Westboro Baptist Church.  However, after a series of appeals, the United States Supreme Court found in a 2011 decision that while “Westboro may have chosen the picket location to increase publicity for its views, and its speech may have been particularly hurtful to Snyder[,] that does not mean that its speech should be afforded less than full First Amendment protection under the circumstances of this case.”  Because the Westboro Baptist Church was speaking on matters of public import (the United States military), and because they did not physically disrupt funeral processions, their picketing was protected as free speech under the First Amendment.  Albert Snyder was forced to pay Westboro’s legal fees.

By appealing lawsuits leveled against them for protests at funerals and for highly-visible signage, the Westboro Baptist Church raises questions about the extensions of the freedom of speech and the freedom of assembly.  Because they have thus far proven successful in their legal appeals, the Westboro Baptist Church has been able to secure protection for language widely lambasted as hate speech.  Snyder v. Phelps proved that despite the emotional trauma they could inflict, as long as the Westboro Baptist Church does not physically interfere with funeral processions or harass individuals, their rhetoric is also afforded First Amendment protection.

While many mainstream conservative Christian groups and well-known politicians are quick to differentiate themselves from the Westboro Baptist Church, few denounce their stance on gay rights and tolerance in America.  Because of this moderate level of identification with the Westboro Baptist Church, some critics argue that hate speech and homophobia are at risk of being normalized.  As Rebecca Barrett-Fox argued, “public outrage in response to pickets at the funerals of fallen servicemen and women reveals a willingness to trade civil liberties for civility…trends that are more threatening to democracy…than are the uncivil pickets of Westboro Baptists.” While many of these constitutional issues are still being debated, one can see that the Westboro Baptist Church continues to exert more influence than its membership size lets on.  And by leaving a legacy of expanding the protections given to hate speech and challenging the boundaries of the First Amendment, the Westboro Baptist Church is extraordinarily important in the history of American religious experience.

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