Fifth Circuit Upholds Atheist Group’s Right to Display Altered Nativity Scene

Texas Gov. Greg Abbott, left, speaks at a 2019 news conference at the Capitol in Austin.
(Jay Janner/Austin American-Statesman via AP)

(CN) – The Fifth Circuit sided late Friday with an atheist group that sued Texas after the state removed its nativity scene promoting the separation of church and state.

Organized at the state Capitol, the scene had depicted the Statue of Liberty and three Founding Fathers standing and kneeling around a copy of the Bill of Rights inside of a manger instead of a baby Jesus. A banner there stated: “Happy Winter Solstice / At this Season of the Winter Solstice, We Honor Reason and the Bill of Rights (adopted December 15, 2791 / Keep State & Church Separate / On Behalf of Texas Members of the Freedom From Religion Foundation.”

After the scene was removed in 2015, the Freedom From Religion Foundation sued Republican Governor Greg Abbott and Rod Welsh, executive director of the Texas State Preservation Board, filed suit in 2016.

Abbott said the scene was inappropriate because it was “subjecting an image held sacred by millions of Texans to the Foundation’s tasteless sarcasm does nothing to promote the morals and the general welfare” and “promotes ignorance and falsehood insofar as it suggests that George Washington, Benjamin Franklin, and Thomas Jefferson worshipped (or would worship) the Bill of Rights in the place of Jesus.”

The organization applied for another exhibit the next year, but was rejected by the board for “purposefully mock[ing] Christians and Christianity by crudely satirizing one of the most sacred symbols of the Christian faith.”

In 2018, a trial judge ruled that the group’s First Amendment rights were violated. A three-judge panel with the Fifth Circuit in New Orleans unanimously affirmed.

U.S. Circuit Judge Stephen Higginson, an Obama appointee, wrote for the court that the trial court has jurisdiction to provide relief for future conduct regarding the nativity scene and that there is still a live controversy.

“However, the district court did not have jurisdiction to enter a retrospective declaratory judgment,” the 17-page opinion states. “Therefore, we vacate the judgment and remand to the district court the consider FFRF’s request for injunctive relief and enter appropriate prospective relief for FFRF.”

Higginson said that when considering entering relief for past conduct, a court needs to look at “the substance rather than the form” of the relief requested.

“The backwards-looking, past-tense declaratory judgement issued by the district court is ‘tantamount to an award of damages for a past violation of law, even though styled as something else,” the opinion states. “While it is true that the declaratory judgment could have some future effect by clarifying the contours of the First Amendment and deterring similar actions by the state, ‘compensatory or deterrence interests are insufficient to overcome the dictates of the Eleventh Amendment.’”

The judge notes that defendants have not retracted earlier statements to the plaintiff that any future applications for a similar nativity scene will be denied, hence the controversy with future conduct.

Attorney General Ken Paxton’s office could not be reached for comment after office hours Friday evening.

The Freedom From Religion Foundation said it is “highly gratified” with the court’s ruling.

Annie Laurie Gaylro, co-president of the group, said in a statement Friday evening that “free speech – even for the atheists Abbott reviles – is alive and well in Texas, despite the governor’s attempts to malign, censor and exclude nonbelievers.”

Higginson was joined on the panel by U.S. Circuit Judges W. Eugene Davis, a Reagan appointee, and James Graves Jr., an Obama appointee.

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