The death of Fred Phelps

Pastor Fred W. Phelps Sr., of Topeka’s Westboro Baptist Church, protested against all manner of behavior that he and his tiny congregation believed was sinful. I presided over two suits involving the Church. Most notably, I declared Nebraska’s flag desecration statute unconstitutional as applied to Margy Megan M. Phelps-Roper and members of the Westboro Baptist Church. See here.

Fred Phelps, the founder of the church, died Wednesday night. The Topeka Capital-Journal has printed a fascinating article about Phelps. See Phelps’ life turned from brilliance to hatred, Phelps was disbarred, reviled internationally by the time of his death (March 20, 2014).

How an eagle scout, who turned down an appointment to West Point, and who became a brilliant lawyer and fundamentalist pastor, came to be one of the most reviled human beings on the planet presents an absorbing story. Especially for the lawyers and judges in the crowd, that story is worth reading and thinking about.


15 responses

  1. His group picketed our shuls in Burlington VT, OZ and the Chabad, as well as UVM’s Hillell. Why he picked VT, the most white and non-secular of States, who knows. The Rabbis, over my objection, decided to ignore him and not stage a counter protest. I stood on the curb, attempting to stop the bad vibes from crossing. “Never ignore bigotry,” I said. A clown, who followed the group around, ridiculing them, appeared. Cops patrolled to maintain order, as if anything was going to happen in this most peaceful of places. I still see both on the street and hurt from the hatred. The First Amendment protects speech, but offers little solace to those hurt by it.

  2. I wonder what will happen to the church after his death. Will it dissolve or find another leader? I’d imagine it takes a strong personality to keep something such as that together.

  3. Lorin,

    Thanks for the photos. On a personal level, I love the idea that a clown followed them around.

    All the best.


  4. I know this isn’t your point, but I’m really impressed by that docket sheet and the freely available PDF copies of the orders. It looks like they’re only available in certain districts — but that’s is real, meaningful dedication to public access to the courts.

    Of course I’d be intensely curious to hear if you encountered any of the Phelpses in court — that article and other materials I’ve read on the clan suggest that there are some determined, smart lawyers there. But I don’t know if you’d feel it appropriate to share personal impressions.

  5. Chocolatetort,

    I encountered Margy Megan M. Phelps-Roper and no one else. She was whip smart and a very, very good brief writer. She treated me respectfully. We got along fine.

    All the best.


    PS The CM/ECF docket sheet with attached PDFs of order and such is available in most of the federal district courts through PACER. We also upload the digital audio of my hearings and trials (I don’t use a court reporter) each day we have a hearing. Thus, anyone, throughout the world, can easily access the written and oral record.

  6. Injustice breeds hatred. I would submit that the Kansas Bar’s jihad against him may well have created the Fred Phelps we all knew and loathed.

    As my claim to fame was in exposing corrupt televangelists, I can assure you that I have little love for religious nutters as a class. I routinely dressed down these virulent hypocrites and especially, the lawyers (“You will forgive my confusion here, Counselor. If justice is only for Christians, then it is not justice at all.” But as one who has been victimized by judicial corruption so spectacular that it offends Russian jurisprudence, I have a unique insight into the dynamics behind that evolution.

    If Phelps had been let alone, he probably would have evolved into a mostly-harmless nutter like Jay Sekulow, Rick Santorum, and former Colorado United States Attorney Mike Norton (to whom the letter above was directed). But as I have documented in detail elsewhere (and incorporate herein by reference), small state bars are arms of the legal oligarchy, where average attorneys (e.g., Harvard-trained David Smith, Stanford-trained Mark Brennan, former Green Party Attorney General candidate and environmental activist “Sunny” Maynard) are often eviscerated for less than what their better-connected colleagues (Democratic fixer Willie Shepherd (mail fraud), ex-Chief Judge Edward Nottingham (taking bribes on the bench to pay for top-drawer hookers), ex-Representative Scott McInnis (grand theft by deception), and Cynthia Ciancio (daughter of a local judge, busted for selling cocaine) scarcely get their hands slapped for. I had a tax client,. Arnie Guttenberg, who was disbarred for defrauding a client of a half-million dollars [and rightfully so!], but in the Colorado Bar’s eyes, his only apparent transgression was that he was not Scott McInnis (who defrauded the Hasan Family Foundation of a like amount, and was embarrassed into having to pay it back during his failed gubernatorial campaign).

    I am willing to lay odds that Phelps didn’t do anything that his colleagues did in the normal course of business. But as he was a bit of a religious wackadoo before they became more mainstream, he had a target on his back from the moment he applied to law school:

    Before Phelps even started law school, a group of Topeka lawyers allegedly tried to block his admission. To be admitted to the bar, a judge must swear to the person’s good character. Phelps couldn’t find a judge who would do it and contended his opposition didn’t like what he was preaching. [from cited article]

    By all accounts, he was a pretty damn good lawyer:

    Phelps developed a reputation as a tough and savvy courtroom and civil rights lawyer and made a lot of money, but he was in trouble with state legal regulators for much of his career.

    In a 1969 disciplinary hearing, the State Board of Law Examiners alleged Phelps committed seven counts of professional misconduct. The Kansas Supreme Court suspended Phelps on three of the seven counts. [Id.; see

    American courts aren’t exactly notorious bastions of honesty; about the only time you get candor out of an appellate judge is in dissent. In a blistering observation that could have been lifted from Judge Kopf’s Standing Bear law review article, Justice Daniel Eismann of the Idaho Supreme Court observed:

    Courts decide cases in one of two ways: (a) they apply the law to the facts and thereby arrive at the result or (b) they determine the desired result and then twist the law and/or the facts to justify it. The error made by the district judge was applying the law to the facts, which produced a result that the majority does not like. …

    There is a saying that hard cases make bad law. That saying is incorrect. It is courts that make bad law in the process of deciding cases based solely upon whom they want to win or lose. A court must have the integrity to decide cases by applying the law to the facts.

    Nield v. Pocatello Health Svcs., Inc, Opinion No. 20 (Ida. 2014) (Eismann, J., dissenting) (unpaginated copy at; emphasis added).

    Justice Eismann (and Justice Scalia) is right. For as I have documented ad nauseum elsewhere, judges lie. A lot. And Fred Phelps didn’t need to be paranoid to know that certain people were out to get him. If he got jobbed–and I think this likely–the experience may have set him off.

    Whereas I attribute the pandemic judicial corruption in the American caricature of a court system to human nature–power minus accountability equals tyranny–Phelps saw it through the lens of the Zoroastrian cosmic war that is at the center of Christianity. Terrorists are not born; they are made.

    Those of you who wield power, remember: Actions have consequences.

  7. That’s about what I’d expected. The article you linked to mentions the book by Lauren Drain, who notes that the kids were raised to debate vigorously and very well. I don’t approve of much else I’ve read about them, but that struck me as highly sensible. I’m more of a l’esprit de l’escalier person myself.

    True, there’s always PACER, but what you linked is much easier to access. You’ve mentioned the audio too, which is great. I’m really impressed with your district’s dedication to transparency.

  8. Phelps’ law career ended Feb. 3, 1989, when he surrendered his license to practice law in federal courts. He gave up his license after he, five of his children and a daughter-in-law — all lawyers — surfaced as defendants in a disciplinary complaint filed Dec. 16, 1985, by nine active and senior U.S. District Court judges in Kansas. The federal judges charged the Phelpses had made false accusations against them.

    The children involved were Fred W. Phelps Jr., Margie Jean Phelps, Shirley Phelps-Roper, Jonathan Baxter Phelps and Elizabeth Marie Phelps. Betty Jean Phelps, wife of Fred Jr., was the seventh defendant.

    The Phelpses claimed blacks and minorities couldn’t get a fair trial in federal court in Kansas; accused U.S. District Court Judge Earl E. O’Connor of racial prejudice, religious prejudice, and conspiracy to violate their civil rights and others; and accused U.S. District Court Judge Richard Rogers of racial prejudice, dislike of civil rights cases, engaging in a racially motivated vendetta against the Phelpses and engaging in a conspiracy with O’Connor.

    In light of what retired Judge Gertner publicly confessed on this blog (“When I was trained as a judge the trainer began the session on civil rights, ‘Here’s how you get rid of these cases.’”), the federal judges were almost certainly guilty as charged.

  9. Apropos of nothing, but I’ve always thought PACER to be a bit of a racket. I understand the courts are underfunded, but charging for access to public domain documents when the marginal cost of delivering those documents is immesurably close to zero is wrongheaded.

    And the administrators of PACER are overzealous in protecting their revenue, as opposed to the public interest. For example, fee exempt users of PACER are prohibited from transmitting public domain documents the obtain to third parties. I don’t know if that would withstand a first amendment challenge, but it has no benefit to the public and is a significant constraint on researchers and not for profit legal organizations which use PACER under fee exemptions. If the worry is another Aaron Swartz situation, a bandwidth limit (e.g. 5gb/month or roughly 10 cents/month of cost to PACER) would be a far less restrictive means of controlling costs.

  10. I misspoke when I identified plaintiff’s counsel. I dealt with Margy J. Phelps as counsel of record. The plaintiff was Margy Megan M. Phelps-Roper.


  11. Ken,

    I think you can trust it. While we often screw up stuff with the electronic filing system, my experience has been that the error was unintentional.


  12. Interesting story. I guess I am not surprised that Mr. Phelps harassed some poor court reporter when she was slow to produce a transcript. But, that he pursued the issue so long through appeals is remarkable. But, it would require a high level of self-confidence to picket funerals for veterans over a very indirect issue like homsexuality. I am a veteran of the Iraq war and did find Westboro’s picketing of veteran funerals close to unforgiveable.

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