‘Non-Theists’ Renew Wrangle With Texas

     AUSTIN, Texas (CN) – Gov. Greg Abbott had the right to call a Nativity display of the Founding Fathers gathered around the Bill of Rights in a manger “tasteless sarcasm,” but he violated the Constitution when he ordered it dismantled, the Freedom From Religion Foundation claims in court.
     The foundation sued Abbott and the director of the Texas State Preservation Board on Feb. 25 in Federal Court.
     When the Preservation Board approved the display of a Christian Nativity scene in the Capitol’s Ground Floor Rotunda in 2014, it was the first time an exhibit promoting a specific religion had been displayed at the Capitol, the foundation says in the complaint. The board allowed another Christian Nativity scene in 2015.
     The foundation submitted an application for its own Nativity scene to the Preservation Board on July 7, 2015, which the board approved after revisions later. The foundation’s featured cutout figures 4 to 6 feet tall celebrating the 224th anniversary of the ratification of the Bill of Rights, and the winter solstice.
     In a letter to potential sponsors, the foundation called its exhibit “a temporary display in the Ground Floor Rotunda that celebrates free thought and the United States as the first among nations to formally embrace the separation of state and church.”
     The foundation’s exhibit went on display on Dec. 18 without disruption, incidents or controversy. But the Preservation Board dismantled it three days later without notice, after Gov. Abbott demanded it in a letter to the board’s executive director John Sneed.
     Abbott called the exhibit a “juvenile parody” that violated the Preservation Board’s regulations and that “should be removed immediately.”
     Abbott wrote that the exhibit did not promote a “public purpose” and that it “deliberately mocks Christians and Christianity” through its use of a manger scene.
     “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 Foundations tasteless sarcasm does nothing to promote morals and the general welfare,” Abbott wrote in the letter. The governor then quoted a supposed passage from George Washington’s prayer journal to support his argument, according to the complaint.
     Abbott wrote that the exhibit promoted “ignorance and falsehood” by suggesting that Benjamin Franklin, Thomas Jefferson and George Washington worshiped the Bill of Rights rather than Jesus.
     In its lawsuit, however, the foundation says that Abbott “missed the point that FFRF’s display, in fact, communicated a diverse message from that of the Christian Nativity scene.”
     It also claims that the “prayer journal” quote was fraudulent: that was falsely attributed to Washington and came from a fabricated prayer journal.
     “Scholars and experts who have compared the handwriting of the purported Washington quote have consistently concluded that it is a fake,” the complaint states.
     The foundation says Abbott has a “history of hostility” to it.
     When Abbott was Texas Attorney General in 2011, he stated: “Our message to the atheists is don’t mess with Texas and our Nativity scenes or the Ten Commandments. … I want the Freedom From Religion Foundation to know that our office has a history of defending religious displays in this state.”
     Abbott also attacked the foundation in a press conference in 2012, saying: “We will not allow atheist groups from outside of the State of Texas to come into the state, to use menacing and misleading intimidation tactics, to try to bully schools to bow down at the altar of secular beliefs. We are not going to either tolerate or accept these atheist groups trying to prevent that freedom of expression here in the State of Texas.”
     In 2015, Abbott defended the right of the Brewster County Sheriff’s Office to display a Latin cross on patrol vehicles after the foundation complained. He also supported the City of Orange’s wish to continue to display a Nativity scene, without allowing the foundation’s banner.
     “Governor Abbott has consistently advocated for displays of religion in the public sphere, while actively opposing any expression of nonreligious principles,” the foundation says in its lawsuit.
     It claims Abbott violated the Constitution by engaging in “unambiguous viewpoint discrimination by removing FFRF’s exhibit for reasons that were not viewpoint neutral or reasonable.”
     “The defendants violated the plaintiff’s First Amendment rights by basing their conduct on disagreement with the message that they concluded that FFRF’s display conveyed. …
     “The defendants’ actions also were content based because they distinguished favored speech from disfavored speech on the basis of the ideas or views expressed …
     “The defendants’ actions were not reasonable and constituted an effort to suppress expression merely because the defendants opposed the speaker’s viewpoint, in this case the viewpoint of FFRF …
     “The defendants further violated the Establishment Clause by preferring and endorsing religion, including by favoring the display of a stand-alone Christian Nativity scene in the Texas State Capitol,” according to the complaint.
     Sam Grover, attorney for Freedom From Religion Foundation, told Courthouse News that Abbott’s claim that the foundation was mocking religion is “baseless.”
     Grover said the foundation plans to put its display in the Texas Capitol again this December and seeks an injunction now to stop Abbott from censoring it again.
     Abbott’s press secretary John Wittman told Courthouse News in a statement: “This atheist group based out of Wisconsin has consistently messed with Texas – and consistently lost. The First Amendment does not require Texas to allow displays at its Capitol building that mock and satirize an entire religion. The Preservation Board acted appropriately by removing the display. The lawsuit is completely baseless.”
     The foundation was established in 1978 in Wisconsin “to promote the constitutional principle of separation of state and church, and to educate the public on matters relating to nontheism,” according to its website.
     It claims more than 23,000 members, including nearly 1,000 in Texas, and says its Nativity display also illustrates that more than 23 percent of the U.S. population identify themselves as nonreligious.
     It seeks declaratory judgment that the defendants violated its constitutional rights, and an injunction stopping them from doing it again.
     It is represented by Fritz, Byrne, Head and Fitzpatrick in Austin and Richard Bolton and Sam Grover in Wisconsin.

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