Judge: Suit on satirical Nativity scene can move forward

AUSTIN — A lawsuit against Gov. Greg Abbott over his order last year to remove a satirical Nativity scene at the Capitol building will move forward after a federal judge on Tuesday denied the state’s motion to dismiss the case.

Last December, the Freedom From Religion Foundation, an organization that promotes the separation of church and state, applied for and received permission to install what it called a “Bill of Rights Nativity and Winter Solstice Display” on the ground floor of the Capitol. In it, the Bill of Rights lay in the manger in place of baby Jesus. The document was surrounded by three founding fathers and the Statue of Liberty, which appeared to be worshipping the piece of paper.

When Abbott learned of the display, days after it had been installed, he wrote to John Sneed, executive director of the State Preservation Board, which had initially approved the exhibit.

“This juvenile parody violates the Preservation Board’s regulations and should be removed immediately,” Abbott wrote. He called the display “tasteless” and said the message was designed to “belittle and offend.”

Exhibit removed

The exhibit was removed one day before it was scheduled to end, and the Freedom From Religion Foundation sued. The organization said its display was meant to counter a Christian Nativity scene on the Capitol grounds, which was not removed. The lawsuit alleges that Abbott and the preservation board engaged in discrimination and censorship by removing the Bill of Rights display, violating the group’s right to free speech.

State lawyers argued that the Capitol’s exhibition area is not a public forum and that government entities can impose reasonable, viewpoint-neutral restrictions on displays there.

U.S. District Judge Sam Sparks wrote that the case should move forward because there remains a question of whether the display was removed because government officials disagreed with the viewpoint it expressed.

“We’re pleased our federal lawsuit has been ruled to have merit,” said Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation. It appears there will be either a bench trial or an appeal of the judge’s ruling.

‘Meritless claims’

John Wittman, a spokesman for Abbott, said the governor was pleased that the court did not require the state to restore the display.

“Governor Abbott remains confident that the Constitution does not require Texas to display this intentionally disrespectful exhibit,” Wittman said.

A spokesman for Attorney General Ken Paxton, whose office is handling the case, said the state will prevail against the foundation’s “meritless claims.”

“The First Amendment doesn’t command government to tolerate speech that mocks religion,” said spokesman Marc Rylander.