Column: When I Testified for Fred Phelps

Sunday, April 06, 2014
Fred Phelps, the notorious pastor of Westboro Baptist Church in Topeka, Kan., died of heart failure March 19 at the age of 84. While his death triggered celebrations among those who reviled his crude and virulent homophobia — not unlike the rejoicing that greeted the death of Jerry Falwell in 2007 — I remember Phelps for having confronted me with an ethical dilemma that haunts me to this day.

Born in Mississippi, Phelps attended various schools, including the arch-fundamentalist Bob Jones University, Prairie Bible Institute in Alberta, John Muir College and Arizona Bible Institute. In 1954, he became an associate pastor of East Side Baptist Church in Topeka and then pastor of the new Westboro Baptist Church the following year.

Phelps earned a law degree from Washburn University in 1964 and established a local reputation as a formidable civil rights lawyer until he was disbarred for misconduct in a lawsuit. He turned his attentions to his church, which, for the remainder of his life, consisted almost entirely of those related to him either by blood or marriage.

Westboro Baptist provided a platform for Phelps’ anti-gay activism, which began with protests over what Phelps alleged was homosexual activity in a nearby city park. When other churches in Topeka refused to join his anti-gay crusade, Phelps’ condemnations became more and more graphic and vociferous. Together with members of his extended family, Phelps picketed the funeral of Matthew Shepard, the gay teenager beaten and left for dead outside of Laramie, Wyo,. in 1998.

“You can’t believe the Bible without believing that God hates people,” he told the Houston Chronicle that same year. “It’s pure nonsense to say that God loves the sinner but hates the sin. He hates the sin, and he hates the sinner. He sends them to hell.”

Shortly after the American invasions of Iraq and Afghanistan, Phelps’ activism took a bizarre turn. Rather than blame ham-handed politicians and a credulous Congress for the death of American soldiers in those misbegotten wars, Phelps decided that military casualties were in fact God’s judgment against the nation for countenancing homosexuality. He and his family began picketing the funerals of soldiers, gay or not, who died in Afghanistan or Iraq with colorful signs that read “God Hates Fags,” “You’re Going to Hell” and “God Is Your Enemy.” It was this gratuitous picketing that plunged Phelps into legal trouble — and where my life briefly intersected with his.

In March 2006 Phelps and the Westboro contingent picketed the funeral of Matthew A. Snyder, a Marine. “They turned this funeral into a media circus and they wanted to hurt my family,” the soldier’s father, Albert Snyder, complained. “They wanted their message heard and they didn’t care who they stepped over. My son should have been buried with dignity, not with a bunch of clowns outside.” Albert Snyder decided to bring a lawsuit against Phelps for invasion of privacy and intentional infliction of emotional distress. Shortly thereafter, Phelps’ attorney contacted me.

At various times throughout my career, I have been asked to serve as an expert witness in cases ranging from a capital murder in Florida to a civil suit against a mega-church in southern California. The most famous case was the so-called Alabama Ten Commandments case, where Roy Moore, chief justice of the Alabama Supreme Court, installed a 2.5-ton granite monument emblazoned with the Ten Commandments in the lobby of the Judicial Building in Montgomery. Because Moore steadfastly refused to allow any other religious representations in that public space, his actions represented a clear violation of the establishment clause of the First Amendment, and I was happy to say so. Religion has thrived in the United States, I believe, precisely because of the First Amendment and the separation of church and state, and too close an association between the two, in my judgment, compromises the integrity of the faith.

But the Fred Phelps case would test me to see how much I really supported the First Amendment. I wrote an entire book on the First Amendment, after all, but I had no stomach for Phelps and his benighted views. Yes, I recognized that the justice system in the United States was adversarial and that everyone is entitled to a fair trial. But did it have to be me? Ugh.

I explained to the attorney that I was a longstanding advocate for gay rights and that I abhorred Fred Phelps and everything he stood for. I considered him vile and hateful and utterly unprincipled. I recounted that, early one summer morning not that long before, I had bestirred my family so we could drive to Montpelier to protest Fred Phelps’ demonstration at the state capitol over civil unions.

Yes, the attorney agreed, but he needed someone to explain the history and vagaries of fundamentalism to the jury. I conceded that I knew something about fundamentalism, but I pleaded with him to find someone else. He agreed to give me time to think about it.

In retrospect, I realize that he had me at “First Amendment.” I believe that the First Amendment is one of cornerstones of American society, and frankly it would be hypocritical of me to defend one clause of the First Amendment (religion) and not be willing to defend the other (freedom of speech). The founders, moreover, recognized that the antidote to offensive speech is not repression, but more speech; James Madison made that clear in the Federalist Papers. As long as speech is not incitement to violence, courts have consistently ruled that it is constitutionally protected.

When the attorney called back — the guy simply wouldn’t give up — I consented to testify. But I informed him that, in the course of my testimony, I would make it clear how deeply repugnant I found Phelps and his rhetoric. He agreed.

The trial itself was a tad surreal. Members of the family picked me up at the airport and ferried me to the courthouse in Baltimore, where I briefly met Phelps. I suspect that either he was out of his element or he was genuinely worried about the outcome of the trial, but he struck me as strangely subdued, not the fire-breathing bigot I expected.

My testimony provided a quick survey of the history of fundamentalism and placed Phelps in the context of such firebrand fundamentalists as Bob Jones and Falwell, who nevertheless once referred to Phelps as a “first-class nut” — the narcissism of small differences. Fundamentalists like Phelps, I explained, are characterized by separatism and militant rhetoric and see the world in relentlessly dualistic terms.

I also made it abundantly clear that I found Phelps’ actions and rhetoric odious.

Passing Albert Snyder in the hallway later that day, I violated all judicial protocol by telling him how deeply sorry I was for the loss of his son.

Did I do the right thing by testifying? I think so, although I’ve revisited that decision many, many times.

After what the Westboro people characterized as a “demon-possessed jury” found in favor of Snyder and awarded him more than $10 million, Snyder v. Phelps made its way to the Supreme Court, where the justices affirmed Phelps’ constitutional right to free speech in an 8 to 1 decision.

Westboro Baptist Church’s website is still going strong, as venomous as ever. One section of the site contains statistics, including a counter claiming to be the “number of people whom God has cast into hell since you opened this webpage.” The figure at the bottom of the column, however, is a static zero for “nanoseconds of sleep that WBC members lose over your opinions and feelings.” I wish I could say the same about my decision to defend Fred Phelps’ constitutional right of free speech.

Randall Balmer is chair of the Religion Department at Dartmouth College. His book Redeemer: The Life of Jimmy Carter will be released next month.

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