Gov. Greg Abbott took down a "Secular Nativity" in 2015. He's now paying the price for it.

Aug 12, 2024

A controversy that began well over eight years ago has finally ended with Texas writing a massive check to the Freedom From Religion Foundation—all because the governor illegally privileged Christianity over other religions and non-religion.

The saga began in 2015 inside the Texas State Capitol, where there was an open forum for holiday displays. A Nativity scene was predictably erected inside, so FFRF chose to respond with this “secular Nativity”:

(Follow above article link to view original article with photos/PDFs.)

The “Jesus” in that scene would be the Bill of Rights, flanked by Founding Fathers Benjamin Franklin, Thomas Jefferson, George Washington, and the Statue of Liberty.

The display also featured this sign celebrating the winter solstice:

If anyone didn’t like it… well, too damn bad. This was an open forum, FFRF applied for the space, and they were given a green light. If critics didn’t want to see the secular display there, the only legal way out of it would be to convince state officials to shut down the forum entirely, but that would mean the Christian displays have to come down too.

Governor Greg Abbott, however, thought there was a different option. That December, just days before Christmas and only three days after it went up, he had the entire secular display taken down.

In a letter to John Sneed, the Executive Director of the State Preservation Board, Abbott explained his reasoning:

First, far from promoting morals and the general welfare, the exhibit deliberately mocks Christians and Christianity. 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. To the contrary, the Foundations spiteful message is intentionally designed to belittle and offend, which undermines rather than promotes any public purpose a display promoting the bill of rights might otherwise have had. The Board has allowed and should continue to allow diverse viewpoints to be expressed in Capitol displays. But it has no obligation to approve displays that purposefully mock the sincere religious beliefs of others.

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Second, the exhibit does not educate… To the contrary, the exhibit 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.

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Third, the general public does not have a “direct interest” in the Freedom From Religion Foundation’s purpose… 

In short, this was a mockery! It was offensive! Therefore, it could legally be removed.

None of that made any sense.

There was no rule that a display had to promote morality or general welfare. Even if there was, you could make the argument that the birth of Christ is far worse than the Bill of Rights since Jesus represents a religion that says all non-believers will be tortured for eternity if they don’t accept His divinity. (Hell, any religion that says you have to believe in God to be good is hardly a paragon of moral virtue.)

More to Abbott’s point, though, how was this display offensive? It featured the Founding Fathers, the Statue of Liberty, and a Bill of Rights. That’s one loaded gun away from a Republican’s wet dream.

FFRF also met the requirement to be educational—it brought attention to the Bill of Rights! And if we’re playing this game, what the hell was so educational about the Nativity? (Just because it honors a virgin birth doesn’t mean it counts as sex ed.)

Abbott argued that it wasn’t educational because George Washington would totally worship Jesus, not the Bill of Rights, and FFRF was promoting “ignorance and falsehood” in saying otherwise:

There was just one problem with that citation: It was fraudulent. Washington didn’t write it. (So much for FFRF spreading “ignorance and falsehood.&rdquo

FFRF also had the required support from a state legislator, Rep. Donna Howard.

In other words, they met all the requirements. There was no reason the display should have been removed. Abbott was just playing to his Christian Nationalist base.

That’s why FFRF filed a federal lawsuit against Abbott back in February of 2016 saying that the governor violated their constitutional rights:

FFRF’s federal lawsuit, filed in the Western District of Texas, Austin division, charges that Abbott and the other defendants violated the free speech, equal protection and due process rights of the organization.

The defendants’ action shows “unambiguous viewpoint discrimination” and was also motivated by “animus” toward FFRF and its nontheistic message, the state/church watchdog group contends. Such action violates the First Amendment’s Establishment Clause by favoring the “stand-alone Christian nativity scene” and disfavoring FFRF’s “nontheistic content.”

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“Gov. Abbott has consistently advocated for displays of religion in the public sphere, while actively opposing any expression of nonreligious principles,” FFRF notes.

Abbott tried to get the lawsuit thrown out but a federal judge ruled that it could proceed because the atheists had a legitimate case on First Amendment grounds. And then, in October of 2017, that judge ruled that FFRF had every right to have its display in the Capitol.

“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 [U.S. District Judge Sam] 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.

That decision was predictably appealed, and there were all kinds of legal shenanigans in the years to follow, but (perhaps unpredictably) the Fifth Circuit Court of Appeals upheld FFRF’s victory in 2023. The unanimous ruling said that just because Texas shut down its open forum didn’t mean it had the right to discriminate if it allowed exhibits in the future. Texas, the judges wrote, “violate[d] the First Amendment by excluding the Foundation’s exhibit from a limited public forum.”

And this week, after even more legal wrangling, FFRF finally received a check from Abbott’s side for the legal fees and penalties: $358,073.67, roughly half of which reimbursed FFRF’s attorneys.

“We’re pleased this federal lawsuit can finally be put to rest,” comments Annie Laurie Gaylor, FFRF co-president. “But had Abbott only done the right thing from the start, or at least accepted the decision of the federal court back in 2017, Texas taxpayers would have been spared most of these attorneys’ fees.”

This is what you get when you have a Republican governor who puts his religious beliefs ahead of the job he was elected to do. He was so threatened by the placement of a perfectly harmless display that he fought it in court for years, ultimately costing taxpayers hundreds of thousands of dollars.

This is a huge victory for church/state separation against the overreach of Christians at the highest levels of state government. Abbott was wrong to remove the display. He was wrong to fight back. He was wrong to ignore FFRF’s numerous warnings. And now he—or at least the taxpayers of the state that put him in office—is finally paying the price for it.

(Large portions of this article were published earlier)