Judge rejects flag-desecration case appeal

OMAHA -- A judge agreed Tuesday to let prosecutors move forward with their case against a Kansas woman accused of violating Nebraska’s flag-desecration law.

Sarpy County District Judge William Zastera dismissed an appeal from Shirley Phelps-Roper. She sought to overturn a lower court’s ruling that allowed the charges against her to stand.

In his ruling, Zastera said the lower court’s ruling issued earlier this year isn’t something that Phelps-Roper can appeal.

Phelps-Roper is part of the Westboro Baptist Church of Topeka, Kan., whose members believe that U.S. troop deaths are punishment for the nation’s tolerance of homosexuality. The group has protested at military funerals nationwide.

She was charged with violating Nebraska’s flag-desecration law in 2007 for allegedly letting her then-10-year-old son stand on an American flag at the funeral of a National Guardsman in Bellevue.

Authorities also say she wore a flag as a skirt that dragged on the ground.

Phelps-Roper had argued that Nebraska’s flag-desecration law violates the Constitution’s First Amendment, which guarantees freedom of speech.

“I don’t know what he’s done, but it doesn’t matter,” Phelps-Roper, who was protesting in Baltimore on Tuesday, said of Zastera’s ruling. “What he did was he unloaded a case that’s problematic for him.”

Nebraska law bars intentionally “casting contempt or ridicule” upon an American flag by mutilating, defacing, defiling, burning or trampling it. Violating the law carries a misdemeanor charge.

Besides the flag-desecration charge, Phelps-Roper faces charges of disturbing the peace, contributing to the delinquency of a minor and negligent child abuse stemming from the incident.

Her attorney, Bassel El-Kasaby of Omaha, has argued that while the other charges aren’t unconstitutional, the way they have been applied is, because they stem from the flag-desecration charge.

He has argued that the five methods named in the law are open to interpretation and can leave people confused about how they can legally protest.

Prosecutors have argued the law is clear and allows anything except those methods.

El-Kasaby said Tuesday that he was disappointed that the judge didn’t rule on those arguments, although he wanted the judge to dismiss the appeal.

El-Kasaby has said he wants to get the case to the Nebraska Supreme Court �” where he can really wage his battle to invalidate the law.

He said he likely will appeal again.