Editor’s note: Sarpy County District Judge William Zastera on June 30 dismissed an appeal from Shirley Phelps-Roper, allowing prosecutors to move forward with their case against her. Zastera said the lower court’s ruling issued earlier this year isn’t something that Phelps-Roper can appeal.

OMAHA Neb. — A Sarpy County judge has denied a challenge to Nebraska's flag-desecration statute raised by a Kansas woman who argues it violates her right to free speech.

Judge Todd Hutton ruled yesterday that prosecutors can proceed with their case against Shirley Phelps-Roper. She is a member 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.

Authorities say Phelps-Roper let her 10-year-old son stand on an American flag at the funeral of a National Guardsman in June 2007 in Bellevue. They also say she wore a flag as a skirt that dragged on the ground.

Nebraska's law against flag desecration prohibits intentionally "casting contempt or ridicule" upon a flag by mutilating, defacing, defiling, burning and trampling it. Violating the law carries a misdemeanor charge.

The Nebraska Supreme Court is responsible for deciding whether a law violates the state Constitution, Hutton said. The case remains in a county court, which has limited authority.

Nebraska lawmakers didn't change the law after the U.S. Supreme Court struck down Texas' flag-desecration law in its 1998 ruling Texas v. Johnson.

"The Nebraska Supreme Court has yet to reconcile the findings" in the U.S. Supreme Court’s Texas v. Johnson ruling and other flag cases, Hutton said.

That, Hutton said, "warrants a measured response" in deciding whether the charges should be dismissed, adding that it is "manifestly strong medicine" if a court allows charges to be thrown out because the law's wording is too broad.

"Great deference is given to the presumption of constitutionality of laws enacted by the Nebraska Legislature," Hutton wrote.

Although Nebraska's law is vulnerable when challenged on its face, it "can be narrowly applied to those circumstances where an accused, through words and conduct of an inherently inflammatory nature, intentionally seeks to create an environment designed to provoke a person to retaliate, thereby inciting a breach of peace."

Phelps-Roper's attorney, Bassel El-Kasaby, said he disagreed with the decision but saw good in it, too.

El-Kasaby said he read Hutton's decision as saying that El-Kasaby may have something to his argument, but it needs to be heard by higher courts.

Had Hutton allowed the motion to throw out the charges, the case would be done but the law would remain.

El-Kasaby said he was inclined to appeal now with hopes of eventually having the case heard by the Court of Appeals, or ultimately, the Nebraska Supreme Court.

"That's where my battle to invalidate the statute would actually mean something," he said.

Sarpy County Attorney Lee Polikov, who's prosecuting the case, called the decision a victory.

"I believe he's absolutely correct that we ought not to be fighting an issue of constitutionality, it's a question of violation of a law, and that's what we intend to do," he said.

He said he wasn't sure whether the order could be appealed. He said if that was what El-Kasaby pursued, he'd be ready to object.

El-Kasaby had argued during a November hearing that the five methods listed in the flag-desecration law were open to interpretation and could leave people confused about how they could use the flag in a protest.

Prosecutors argue the law is valid because it leaves open all methods for protest other than the five stated.

Phelps-Roper also faces charges of disturbing the peace, contributing to the delinquency of a minor and negligent child abuse.

El-Kasaby has argued that although those laws aren't unconstitutional, their application is because the charges stem from the flag-desecration charge.

Phelps-Roper, too, applauded the decision. It's a "golden opportunity to preach the word of God to this nation and to this generation," she said.

Eventually, the case will have to go away, she said.

"At the end of the day they cannot charge me with a crime, because that little guy lawfully stood on their idol," she said, referring to her son.