Eighth Circuit En Banc to Hear Funeral Protest Ordinance

The Eighth Circuit has granted the petition for rehearing en banc by the City of Manchester, Missouri regarding the constitutionality of its funeral protest ordinance. 

The court's order vacates the panel's opinion which, as we previously noted, is exceedingly problematical.  The panel opinion created a circuit split, holding unconstitutional an ordinance almost identical to one that the Sixth Circuit found constitutional.

The City of Manchester's petition argues that a circuit split itself has constitutional dimensions:

The panel’s opinion, if it is allowed to stand, means that citizens living within the confines of the Sixth Circuit will be governed by a substantive rule of law on a crucial issue that is diametrically opposed to the substantive rule of law governing the citizens living in this Circuit with respect to that same crucial issue. Sufferance of this situation is anathema in a country where all citizens are guaranteed equal protection of the laws. A direct, unresolved circuit split on an issue of considerable national interest does not merely present an academic question, it actively breeds confusion about the law among the public and raises questions concerning the role of the courts in our society.

Yet as we noted, even apart from the circuit split, the Eighth Circuit's per curiam opinion was quite   cursory: the First Amendment analysis is two paragraphs.  The first paragraph disagrees with the district court that the ordinance was a content based regulation.  As for the second paragraph, it concludes that the district court was required to follow Eighth Circuit precedent in another  funeral protest case, Phelps-Roper v. Nixon, this one involving the Missouri statute.

The City of Manchester argues that "The errors of the trial court and the panel here stem from their dependence on Nixon and in turn on that panel’s mistaken reliance" on a previous Eighth Circuit opinion that in turn relied upon Frisby v. Schultz, 487 U.S. 474 (1988).  In short, the City of Manchester argues that the panel judges failed to update their precedent, an argument that is supported by one of the concurring judges in the panel who "respectfully" suggested that the United States Supreme Court opinion in Snyder v. Phelps "provides the proper method of analysis for deciding whether the Manchester ordinance is constitutional."

Oral argument is set for January 9, 2012 in St. Louis.

RR