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Published by the Freedom From Religion Foundation, Inc.

FFRF wins lawsuit against Texas Gov. Abbott

The Freedom From Religion Foundation on Jan. 27 won its case before an appeals court against the Texas governor’s censorship of its Capitol display.

After Gov. Greg Abbott and the State Preservation Board blatantly and illegally censored FFRF’s display in the Texas Capitol in 2015, Abbott and the board have fought every step of the way to delay the ultimate resolution of FFRF’s now six-and-a-half-year lawsuit, engaging in protracted, entirely avoidable litigation at taxpayer expense.

FFRF, with help from members and with requisite permit and sponsorship by a legislator, had placed a Winter Solstice display in the Capitol building in December 2015 to counter a Christian nativity there. FFRF’s whimsical exhibit depicts the Founders and the Statue of Liberty celebrating the “birth” of the Bill of Rights (adopted on Dec. 15, 1791). Abbott, as chair of the Preservation Board, while permitting the Christian exhibit, ordered FFRF’s display removed only three days after it was erected, lambasting it as indecent, mocking and contributing to public immorality. FFRF initially won its lawsuit at the  district court level in 2018.

Abbott and the Texas government have lost at every level in the case. A district judge granted FFRF permanent relief in May 2021, ordering declaratory and injunctive relief to ensure that Abbott and the State Preservation Board would not violate FFRF’s free speech rights in the future.

In Abbott’s third appeal in the case, he argued that since the Preservation Board changed its rules, the case had become moot. The rule changes declared that all exhibits placed in the Capitol were now “government speech.”

In a unanimous decision written by Circuit Judge Jennifer Walker Elrod, with Chief Judge Priscilla Richman and Judge Patrick Higginbotham joining, the 5th U.S. Circuit Court of Appeals decision does not agree with Abbott’s “government speech” analysis. But it does conclude that this latest amendment has effectively closed the Texas Capitol as a forum for private speech. The court explains, “Instead of allowing the Foundation to participate in the limited public forum, the state elected to . . . close the forum altogether.” For this reason, the appeals court reversed one aspect of the district court’s judgment, eliminating its order for injunctive relief.

The appeals court goes on, however, to warn the state that closing its forum in the Texas Capitol does not mean the state has free rein to discriminate when displaying exhibits in the future: “If the board adopted an unwritten policy of accepting exhibits from members of the public and, in determining which exhibits to accept, discriminated on the basis of an exhibit’s viewpoint, such a policy would almost certainly violate the First Amendment.” Moreover, the court notes, “The Foundation is in no way precluded from filing a new lawsuit challenging the constitutionality of such a policy, should one be established.” For these reasons, the appeals court concludes, the district court’s order and declaratory judgment should remain in place, as “this precedent is particularly valuable because it might bear on future state policies respecting a similar subject, and any related disputes.”

The case will now return to the district court for resolution of FFRF’s outstanding claim for attorneys’ fees and costs. 

“We’re very happy that our victory in the lower court has survived Gov. Abbott’s latest appeal,” notes FFRF Associate Counsel Sam Grover, who argued the case before the 5th Circuit. “The governor’s stubborn refusal to admit his wrongdoing throughout this litigation has been baffling, and it is unfortunate that Texas taxpayers may ultimately bear the costs of his repeated appeals.”

Comments Annie Laurie Gaylor, FFRF co-president: “While Abbott called our display celebrating the Bill of Rights ‘offensive,’ it is his autocratic actions that are offensive. It is Abbott who offensively even once told FFRF that we and other nontheists should stay out of Texas.”

FFRF is represented by Associate Counsel Sam Grover and Senior Counsel Patrick Elliott in the case, with attorney Rich Bolton of Boardman and Clark LLP serving as litigation counsel.