The Freedom From Religion Foundation has officially won a major lawsuit against the state of Texas.
They actually won the case back in October, but additional challenges came up. The new decision marks an official end to the case… at least at this level.
To understand what’s going on, you have to know that the Texas State Capitol has an open forum for holiday displays. So here’s what FFRF put up in December of 2015 to counter a Nativity scene in the same space.
That would be a secular Nativity with the part of Jesus played by the Bill of Rights, flanked by Founding Fathers Benjamin Franklin, Thomas Jefferson, George Washington, and the Statue of Liberty.
The display also featured this sign:
Just to reiterate: This was an open forum. FFRF applied for the space, just like everyone else, and they were given a green light.
That is, until December 22, 2015, when Governor Greg Abbott ordered the whole thing to be removed.
In a letter to John Sneed, the Executive Director of the State Preservation Board, Abbott explained his opposition:
First, far from promoting morals and the general welfare, the exhibit deliberately mocks Christians and Christianity. The Biblical scene of the newly born Jesus Christ lying in a manger in Bethlehem lies at the very heart of the Christian faith. Subjecting an image held sacred by millions of Texans to the Foundation’s tasteless sarcasm does nothing to promote morals and the general welfare. To the contrary, the Foundation’s spiteful message is intentionally designed to belittle and offend, which undermines rather than promotes any public purpose a display promoting the bill of rights might otherwise have had. The Board has allowed and should continue to allow diverse viewpoints to be expressed in Capitol displays. But it has no obligation to approve displays that purposefully mock the sincere religious beliefs of others.
Let’s point out a few facts:
There was no rule that a display had to promote morality or general welfare. Even if there was, you could make the argument that the birth of Christ is far worse than the Bill of Rights since Jesus represents a religion that says all non-believers will be tortured for eternity if they don’t accept His divinity. Hell, any religion that says you have to believe in God to be good is hardly a paragon of moral virtue.
But even more to Abbott’s point: How was this display offensive? It’s the Founding Fathers, the Statue of Liberty, and a Bill of Rights.
It was a loaded gun away from being a Republican’s wet dream.
Not only did FFRF meet the requirement to be educational — which the Nativity scene most certainly wasn’t — they also had the required support from a state legislator, Rep. Donna Howard.
But Abbott didn’t care:
Second, the exhibit does not educate. According to the Freedom From Religion Foundation’s application, the purpose of the exhibit is “to educate the public about the religious and nonreligious diversity within the State.” But the exhibit does not depict any other religion, much less does it promote religious “diversity.” And it promotes “nonreligious diversity” only insofar as it mockingly depicts Christians’ religious worship. This is not an exhibit that spreads a secular message in an effort to educate the public about nonreligious viewpoints; it instead denigrates religious views held by others. There is nothing “educational” about that.
(I guess we shouldn’t be surprised that Abbott felt the Christian display was educational. After all, the Nativity scene honored a virgin birth. That counts as sex ed in Texas, right?)
Abbott then pointed out that George Washington would totally worship Jesus over the Bill of Rights, and FFRF was promoting “ignorance and falsehood” in saying otherwise:
Just one problem with that citation. It was fraudulent. Washington didn’t write it. So much for FFRF spreading “ignorance and falsehood”…
That was the least of FFRF’s concerns, though. The more pressing matter was that Abbott shut down the atheists’ display, something he’d never even consider if we were talking about Christians. So FFRF filed a federal lawsuit against Abbott back in February of 2016:
FFRF’s federal lawsuit, filed in the Western District of Texas, Austin division, charges that Abbott and the other defendants violated the free speech, equal protection and due process rights of the organization.
The defendants’ action shows “unambiguous viewpoint discrimination” and was also motivated by “animus” toward FFRF and its nontheistic message, the state/church watchdog group contends. Such action violates the First Amendment’s Establishment Clause by favoring the “stand-alone Christian nativity scene” and disfavoring FFRF’s “nontheistic content.”
“Gov. Abbott has consistently advocated for displays of religion in the public sphere, while actively opposing any expression of nonreligious principles,” FFRF notes.
The group is seeking a judgment that each defendant violated the Establishment Clause of the First Amendment and clauses protecting free speech and equal protect rights and due process rights of the plaintiffs. It is asking for damages and reasonable costs and attorneys’ fees.
In December of 2016, U.S. District Judge Sam Sparks ruled that the lawsuit could proceed — despite Abbott’s best efforts to throw it out — because the atheists had a legitimate case on First Amendment grounds.
FFRF has established genuine issues of material fact with regard to its freedom of speech claim and claim under the Establishment Clause.
Other aspects of the lawsuit were rejected on other counts, but that didn’t matter. On the main issue of free speech and a First Amendment violation, the lawsuit would get a hearing on its merits.
“Defendants have justified removal of FFRF’s exhibit by arguing the exhibit’s satirical tone rendered it offensive to some portion of the population. That is viewpoint discrimination,” writes Sparks in a 24-page ruling. The court also held that a reasonable official in Governor Abbott’s position would have known that removing FFRF’s display based on its viewpoint would violate FFRF’s First Amendment rights, thus FFRF can sue Governor Abbott in his personal capacity.
“It is ‘beyond debate’ the law prohibits viewpoint discrimination in a limited public forum,” Sparks ruled.
Besides the decision saying the FFRF display never should have been removed, it also said FFRF could sue Gov. Abbott in a personal capacity to see if he violated their freedom of speech. They would also get exactly one hour to depose the governor — something he fought against — in order to assess his motive for removing their display from the Capitol. (The judge said Abbott did not violate the Establishment Clause when he removed the display, but that didn’t let him completely off the hook.)
Abbott, unsurprisingly, didn’t like that decision. And two obstacles quickly sprang up:
… there were two roadblocks to achieving the final judgment. First, Abbott appealed the district court’s ruling that he could be sued as an individual (as opposed to being named defendant in his official capacity as governor) and the district court wished to hold a trial to decide FFRF’s personal capacity claims against Abbott and its redundant Establishment Clause claims.
The good news is that Sparks decided neither roadblock got in the way of his initial ruling. They were irrelevant to the First Amendment issues that came up. So last night, the judge issued a final ruling on the matter.
“We’re pleased to finally have this lawsuit wrapped up,” says [FFRF Associate Counsel Sam] Grover. “Now we wait to see whether Gov. Abbott and the Texas attorney general’s office will follow the law and allow us to place our display again, or whether they appeal this decision and waste more state resources to fight against one of our nation’s most foundational free speech principles.”
Regardless of what happens now, this, as before, remains a huge victory for church/state separation, against the overreach of Christians at the highest levels of state government. Abbott was wrong to remove the display and he was wrong to fight back. Now the courts say so too.
(Large portions of this article were published earlier)