FFRF defeats Gov. Abbott over Capitol nativity display

FFRF has prevailed in federal court against Texas Gov. Greg Abbott, who ordered the removal of FFRF’s Bill of Rights Nativity display from the Texas Capitol in 2015.

In his decision, handed down Oct. 13, U.S. District Judge Sam Sparks for the Western District of Texas – Austin Division, ruled that Abbott violated FFRF’s free speech rights.

FFRF had placed a duly permitted display celebrating the Winter Solstice and Bill of Rights Day, in response to a Christian nativity scene in the Texas Capitol. The display, depicting three Founding Fathers and the Statue of Liberty celebrating the birth of the Bill of Rights (adopted Dec. 15, 1791), had the requisite sponsorship from a Texas legislator (state Rep. Donna Howard).

Abbott, as chair of the Texas State Preservation Board, ordered FFRF’s display taken down only three days after it was erected, lambasting it as indecent, mocking and contributing to public immorality. Abbott tweeted that he ordered the display removed because “mocking the Capitol Nativity scene is offensive.”

“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. “Because the ostensibly mocking tone of the FFRF exhibit is defendants’ sole reason for removing the exhibit from the Ground Floor Rotunda, the court finds defendants have engaged in viewpoint discrimination as a matter of law.”

The court also held that a reasonable official in Gov. 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 Gov. Abbott in his personal capacity.

Ken Herman, an op-ed writer for the Austin American-Statesman, agreed with the judge’s ruling.

“The foundation is a church-state separation group with a knack for making its points in ways that can upset some people who sometimes can benefit from a periodic upsetting,” Herman wrote.

Sparks did not find that Abbott’s actions violated the Establishment Clause, but also ruled in FFRF’s favor that FFRF has the right to depose the governor for one hour. Abbott had fought the request for a deposition.

Rep. Howard, who sponsored the display, noted that Abbott’s intervention came only one day before FFRF’s display was supposed to come down. “That does appear to make this more of a political statement,” she said. “It was going to come down anyway.”

FFRF Co-President Annie Laurie Gaylor praised the ruling as a very strong decision for FFRF, for free speech and for the rights of nonbelieving citizens.

“We’d rather keep divisive religious — and irreligious — views out of state capitols. But if the government creates public forums, and permits Christian nativities in them, there must be room at the inn for the rest of us.”

Abbott says the state of Texas isn’t done with this issue.

“Be assured,” Abbott tweeted after the ruling, “this will be appealed.”

FFRF’s Bill of Rights nativity display was removed by Texas Gov. Abbott, but a court decided that Abbott’s action was unconstitutional.
FFRF’s Bill of Rights nativity display was removed by Texas Gov. Abbott, but a court decided that Abbott’s action was unconstitutional.

The case is Freedom From Religion Foundation v. Governor Greg Abbott, Case No. A-16-CA-00233-SS. FFRF was represented by Attorney Richard L. Bolton with FFRF Attorney Sam Grover as co-counsel.