What is clear from reading Justice Roberts’ decision is that he and his fellow justices in the majority interpret the words and actions of Westboro Baptist Church as on a continuum with other religious voices in the public square, more outrageous and extreme, to be sure, but even so as part of the ‘public debate’ that religious voices in America have long fought to be a part of. For someone who identifies with the religious left, then, one might think that this decision on the part of the court is a necessary evil insofar as it protects other very unpopular religious voices from being penalized in the public arena. One saw something of this line of reasoning in the following comment on a Catholic blog: “It was intended to state an opinion that hurt people. We are allowed to do this in this country. Hateful stuff is written and spoken all the time. It hurts people. When people say gays are immoral or going to hell, e.g., it hurts. It is also allowed.”
One can hear in a statement like this the concern that a decision against Phelps and Westboro Baptist might render more plausible the attempts to ban anti-abortion and anti-homosexuality speech of central importance to many religious conservatives. Perhaps even the anti-war speech on the part of the religious left, if outrageous enough, would have been at risk as ‘hate speech’ or IIED. During oral arguments the repeated comparisons of the Phelps’ actions to the Vietnam and Iraq war protests not only by Justice Scalia and Roberts but also by Justice Sotomayer show evidence that the speech before them was seen as on a continuum—the far edge of public debate.
To think along these lines, however, is to fail to recognize how utterly unique Westboro Baptists’ actions are and how theologically distant their views are from nearly all religious groups in the U.S. seeking a public voice. Some of this distance was indicated in the amicus brief filed on behalf of Snyder by the state of Kansas, though not insofar as it related to the theological beliefs of the Phelps. Most Americans, perhaps especially on the religious and political left, will likely and mistakenly associate Phelps with what they will call the ‘Religious Right’. In fact, Westboro Baptist Church picketed Jerry Falwell’s funeral, indicating that by their light, Falwell had ‘split Hell wide open the instant he died.”
The court could have profited by questioning Margie Phelps at more length about the theological beliefs of Westboro Baptist.* My sense is that without this understanding, what sets the Phelps’ actions apart from, say, emotionally distressing anti-abortion protests or even vehemently anti-gay rhetoric from religious conservatives will be missed. It is not simply that most religious conservatives have the decency to respect the intense and traumatic grief of a family having just lost a son or daughter to a violent death. Nor is it, as some have suggested, that most religious conservatives in America are also deeply patriotic (a debatable assumption) and so abhor Westboro’s claim that God is killing U.S. soldiers.
Rather, the key at getting at what sets the Phelps’ theology speech apart from nearly all other public religious voices is in their theology. This can be gleaned if we pursue a line of questioning Justice Breyer began in oral argument when he suggested that intentional infliction of emotional distress may be defensible when one is doing it for ‘a cause…to demonstrate how awful the war is.” This, of course is not the Phelps’ position at all. Far from viewing the war as ‘awful’, they see it as a glorious triumph of God’s wrath on America. In their theology God’s ‘speech’ is the very killing of these young men and women, sending them immediately to hell for further torment. To traumatize and to terrorize all those outside their church with their speech is the goal, since in their distorted version of Calvinism, they are quite sure that all outside their congregation are going to hell by God’s will. To contribute to this judgment, to quite literally ‘give hell’ to the Snyder family, and by extension all they can reach by the platform granted them by the media and the Constitution, is their one and only aim. By violating the fundamental precept of both orthodox Roman Catholicism and strict five point Calvinism that one cannot know who is damned to hell (even Judas has never been definitively judged as so by the Roman magisterium), Phelps and Westboro Baptist are able to in effect bring hell to earth right now, or, in their favored paraphrase of Jeremiah, ‘to put the cup of fury to the lips of this nation and make them drink.”
Hell-fire preaching has a long and storied history in the American context. But again, we should not mistake what the Phelps are doing with, say, the hell-preaching of a Jonathan Edwards or the rich history of five-point Calvinist preaching as we see it today in someone like the popular five point Calvinist preacher John Piper. Piper, as conservative a preacher as they come, and one ready to preach hell when the occasion arises,** is nevertheless quite orthodox in insisting that neither he nor anyone can know who is in hell. Thus at a funeral sermon preached in his congregation for a suicide, Piper did not suggest that the person was in hell, nor is he willing to say, as far as I know, that a specific ‘unrepentant’ homosexual person is in hell.
Indeed, it is the theology of hope for repentance that marks the Calvinist and Roman Catholic tradition of preaching hell, and insofar as such preaching has a place in public discourse, it is as a religiously intensified plea for ethical, moral, and political reform. Its sources may be religious, but its recommendations for reform are open to reasoned public debate. Secular people may not preach hell, but some of the doomsday scenarios described by those advocating various political and social causes bear a distinct family resemblance.
And here is where the confusion lies when one is not aware of Westboro Baptist’s ‘outlier’ theology. For they too use the language of repentance. In her oral argument, Margie Phelps stated ‘our answer is you have got to stop sinning if you want this trauma to stop happening.’ If one of the justices had stopped to explore this statement, I suspect things might have gone differently. It might be assumed that in this context to repent, to ‘stop sinning’ means to cease engaging in homosexual behavior or to support it in any way. This would be a mistaken assumption, however. For there are innumerable other Christian and non-Christian groups who would share this message, yet, according to Phelps, none of them are repenting properly. All are going to hell as well, the Falwells among them. In a fascinating discussion of the Phelps’ theology in her groundbreaking Ph.D dissertation, Rebecca Fox-Barrett describes how a man from Florida who preaches the exact same message as the Phelps, up to including links to Westboro Baptist’s website as an amplification of his own message, is viewed by the Phelps as ‘rebellious’ and unrepentant. The reason? He will not leave Florida and join their church, submitting to their ultimate authority as God’s only true voice. There is no salvation outside the Westboro Baptist Church, and repentance thus has no meaning outside its boundaries. This is clear from Fox-Barrett’s dissertation, where the only instances of repentance acceptable to the church’s leaderships are ones internal to the church, where a member accepts rebuke from the leadership and submits to its decisions. Thus repentance, to ‘stop sinning’, is ultimately part of a closed and I would argue a private system.
Why, then, do the Phelps’ spend such an inordinate time going outside the confines of their trauma-machine to preach to the world?*** It is not, as we find among other religious voices of the left and right, in order to persuade, or even to evangelize in hopes of bringing others to join their church. The few examples of outsiders who ‘converted’ to the Phelps’ message and moved to Topeka have, according to Fox-Barrett, very rarely been accepted by Westboro as members. As they put it on their website, GodHatesFags.com, ‘We are not really interested in a dialogue with you demon-possessed 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 other of your euphemisms for compromising in our stance on the Word of God.”****
And the 'Word of God 'for outsiders is, as Fox-Barrett shows, violent death and endless torment in hell. That this Word creates violent opposition only re-inforces the private fantasy that they and they alone are God’s persecuted remnant. Their speech is purely for internal boundary maintenance and to inflict trauma on outsiders. As Margie Phelps put it immediately following the Supreme Court verdict, God’s word for ‘public concern’ just is violence: “when you stand there with your son in bits and pieces you’ve been dealt some emotional distress ‘by the Lord your God’.
Would knowing this about the Phelps’ theology and the purpose of their protests have mattered in the legal setting of a Supreme Court decision? I wonder. Certainly politics are part of all legal proceedings, and desire for those on the right to protect religiously motivated anti-gay speech and for those on the left to protect equally unpopular anti-war speech may well have played a role. In any case, closer scrutiny to the Phelps’ theological speech may well have called into question its ‘public’ nature, and made a decision against them less dangerous for protecting the vast majority of religious voices from unwarranted IIED tort liability. It is certainly harder, knowing this theology, to imagine what value the Phelps’ message has for a public whose sole value, in the Phelps’ eyes, is as an object of their God’s brutalizing, uncommunicative word of damnation.
*she was questioned at length about her legal understanding of the First Amendment and IIED tort issues—here she was both extremely knowledgeable and confident, not surprising given her father’s own legal background and the fact that eight of her siblings are also lawyers.
** Most famously, perhaps, Piper recently preached a sermon in his home state of Minnesota arguing that a tornado that hit the steeple of the local ELCA church was a sign of God’s impending wrath for that denomination’s tolerance of homosexuality.
*** One the most disturbing aspects of the Phelps’ and Westboro Baptist are the accounts of violent physical, emotional, and spiritual abuse of their children. Two of Fred Phelps sons have written and spoken extensively about this trauma inflicted on them and their mother and siblings. Hell was an ever-present reality in their lives and is, sadly, to this day.
**** For the quote here, see p. 23 of the remarkable University of Kansas Ph.D dissertation of Rebecca Fox-Barrett, a Mennonite who was, for several years, given unprecedented access to the Phelps’ and their church. Pray not for this People for their Good: Westboro Baptist Church, the Religious Right, and American Nationalism. (unpublished) Unfortunately for scholars of religion, the Phelps’ website was disabled recently by hackers opposed to their message.