This week a federal judge cleared the way for a lawsuit against Gov. Greg Abbott for taking down a secular Christmas display inside the capitol building last year, saying the case raises legitimate free speech issues.
On Tuesday, Austin federal judge Sam Sparks refused to dismiss the case filed against Abbott by the Freedom From Religion Foundation, a nonprofit advocacy group that promotes separation of church and state. According to Sparks' ruling, there are serious questions (answers for which should be determined at trial) about whether Abbott's decision to remove a display he simply did not like constituted so-called "viewpoint discrimination."
The display itself was a dorky paean to the Founding Fathers and Bill of Rights, a display that, with the support of a state lawmaker (State Rep. Donna Howard, D-Austin), the secular group placed in the state capitol's basement rotunda. It depicts George Washington, Thomas Jefferson and Ben Franklin gathered around a manger, which is cradling the Bill of Rights. A poster next to the display read: "Happy Winter Solstice. At this season of the Winter Solstice we honor reason and the Bill of Rights (adopted December 15, 1791). Keep state and church separate. Placed by the Freedom From Religion Foundation on behalf of its Texas members."
In a very angry letter Abbott sent the State Preservation Board, he demanded they immediately remove the display from a barely noticeable corner inside the bowels of the state capitol, calling it an "indecent" and juvenile parody that "deliberately mocks" Christians. "The Constitution does not require Texas to allow displays in its Capitol that violate general standards of decency and intentionally disrespect the beliefs and values of many of our fellow Texans," a very defensive governor wrote.
If Abbott's demand was based on the fact that he simply disagreed with the secular viewpoint expressed by the display, Judge Sparks wrote in this week's ruling, that could be construed as discrimination based on viewpoint – which would make this a genuine First Amendment battle. The state generally allows groups to display a variety of exhibits around the capitol provided they have a "public purpose," which the Freedom from Religion Foundation argues they very much had with their Founding Fathers and Bill of Rights display.
Meanwhile Abbott's office just seems happy they don't have to deal with that "indecent" display, at least for another year – Sparks' ruling didn't force the state to put the display back up. "Governor Abbott remains confident that the Constitution does not require Texas to display this intentionally disrespectful exhibit," Abbott spokesman John Wittman told the Texas Tribune
in a prepared statement.