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Abbott loses nativity lawsuit

Merry secular Christmas!

A federal judge ruled against Texas Gov. Greg Abbott’s decision two years ago to remove a mock Nativity display from the Texas Capitol that advocated the separation and church state.

U.S. District Judge Sam Sparks ruled late Friday that Abbott “violated [the Freedom From Religion Foundation’s] clearly established First Amendment right to be free from viewpoint discrimination in a limited public forum.”

It all started in late 2015 when the Freedom From Religion Foundation placed a “winter solstice” display in the Capitol basement. The exhibit featured a cardboard cutout of the nation’s founding fathers and the Statue of Liberty looking down at the Bill of Rights in a manger.

Abbott ordered its removal, calling it a “juvenile parody” and writing that the “Constitution does not require Texas to allow displays in its Capitol that violate general standards of decency and intentionally disrespect the beliefs and values of many of our fellow Texans.”

See here, here, and here for the background, and here for a copy of the decision. The FFRF press release sums up:

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 at the Texas Capitol. The display, depicting 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.

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.

“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.

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.

I’ve read the decision and I’m a bit unclear as to what the deposition is about, but I believe it’s because there is an ongoing claim over Abbott violating FFRF’s free speech rights. I’m sure there will be appeals, so one way or another, this isn’t over. It is a reminder that if you’re going to allow religious-themed displays that you like on government property, you’re going to have to allow religious-themed displays that you don’t like. There’s a lesson in there somewhere, if you want to go digging for it. Trail Blazers has more.

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One Comment

  1. mollusk says:

    As a “high ranking government official,” Abbott is normally immune from being forced to show up if he doesn’t want to be deposed. Likewise, he’s normally immune from being sued individually for things he does as governor. Here, however, he injected his own personal religiosity into things with great vigor, including some Trumpesque tweeting. Since he’s the only person who really knows why he decided to do that, the FFRF gets to put him under oath and ask just what was rattling around in his mind.

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