Topeka Capital-Journal, September 16
661 NE Jefferson Street,Topeka,KS,66607
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Justices examine Phelpses' anti-gay picketing signs
Prosecutors say signs were effort to intimidate.
By STEVE FRY, The Capital-Journal

Kansas Supreme Court justices got an up-close look Wednesday at two anti- homosexual picketing signs that helped spur felony charges against the Rev. Fred W. Phelps Sr. and his son, Jonathan B. Phelps.

The picket signs were unsheathed after being carried into the courtroom covered by a garment bag.

"I just wanted you to see the signs," Stephen M. Joseph, a Wichita attorney defending Jonathan Phelps, told the seven justices.

Shawnee County District Attorney Joan Hamilton asked the justices Wednesday to overturn District Judge Melvin M. Gradert's May 27, 1997 ruling that prosecutors didn't have sufficient evidence to have the Phelpses bound over for trial.

Jonathan Phelps and Fred Phelps Sr. were charged with two counts of aggravated intimidation of a witness or a victim following anti-homosexual picketing by Westboro Baptist Church, where the older Phelps is minister.

A Shawnee County District Court judge had ordered the Phelpses bound over for trial, but they appealed. Gradert, a Harvey County judge, was assigned to the appeal and ruled prosecutors didn't have sufficient evidence. Hamilton then appealed that ruling to the Kansas Supreme Court.

The intimidation charges flow from a misdemeanor disorderly conduct charge filed against Fred Phelps Sr. in which he was charged with calling Jerry Palmer a "sodomite" and a "fat ugly sodomite" in March 1992 as Palmer walked to a fund-raising luncheon at a downtown hotel where Hillary Rodham Clinton spoke.

Jonathan Phelps later carried a picket sign at St. David's Episcopal Church bearing the messages, "Pig Palmer FUS (fat ugly sodomite)" and "Gays are worthy of death."

Palmer, a member of St. David's, said the message implied, "Palmer is worthy of death."

Prosecutors contend those signs were an attempt to intimidate Palmer.

Joseph questioned how intimidated Palmer really was, noting he brought a camera to photograph Jonathan Phelps holding the signs. This is the evidence that Gradert says, "Let's be serious here," Joseph said with a mock chuckle.

He also said an objective analysis of the aggravated intimidation law and the evidence presented by Palmer doesn't show Jonathan Phelps was trying to dissuade Palmer from testifying against Phelps' father.

Fred Phelps Sr., who represented himself Wednesday, told the justices that carrying the anti-homosexual signs outside the church attended by Palmer, who had filed a disorderly conduct complaint against him, was an exercise of religious freedom.

Phelps Sr. said Hamilton is persecuting Jonathan Phelps and the picketers because their religious views are different from those of Hamilton and Palmer.

Hamilton countered with the fact that six hearings had been conducted in state and federal courts on whether she was persecuting Westboro Baptist Church, and she was upheld each time.

"Gays are worthy of death" is an implied threat because it was linked to Palmer's name, Hamilton said. In the 11 months between the fund-raiser for then presidential candidate Bill Clinton and the filing of the disorderly conduct charge, there was no contact between Palmer and Fred Phelps Sr., she said.

When the disorderly conduct charge was filed, the FUS picket signs appeared and fax messages with "words that showed anger, words that showed hatred" against Palmer surfaced, Hamilton told the justices.

As to why Palmer photographed Jonathan Phelps, Hamilton said, he did it to gather evidence. Until June 1993, there hadn't been any picket signs linked to Palmer, Hamilton said.

Fred Phelps Sr. said Hamilton and Palmer were using the criminal law to burden his religion because of "their own emotional religious component."

When he picketed outside the fund-raiser, Fred Phelps Sr. said he was preaching that any society condoning homosexuality will meet the fate of Sodom.

Under normal handling of the cases, the Supreme Court could have decisions on these cases by Oct. 30.