(CN) – A federal appeals court ruled for the atheist group Freedom From Religion Foundation late Friday in their dispute with Texas officials over the removal of its nativity scene at the Texas Capitol that promoted separation of church and state.
A three-judge panel with the Fifth Circuit in New Orleans unanimously concluded a federal court in Austin had jurisdiction to rule on the lawsuit.
The FFRF sued Republican Governor Greg Abbott and Rod Welsh, executive director of the Texas State Preservation Board, in 2016 for free speech, equal protection and due process violations after its nativity scene was removed one year earlier.
Abbott had asked the board to remove the scene that depicts 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.
The scene contained a banner stating “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.”
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 reapplied 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.”
The trial judge ruled in 2018 the plaintiff’s First Amendment rights were violated.
Writing for the Fifth Circuit panel, Circuit Judge Stephen Higginson, a Barack Obama appointee, concluded the trial court has jurisdiction to provide the FFRF relief for future conduct regarding its 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 FFRF said it is “highly gratified” with the court’s ruling.
FFRF co-president Annie Laurie Gaylro 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 Circuit Judges W. Eugene Davis, a Ronald Reagan appointee, and James Graves Jr., a Barack Obama appointee.
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April 04, 2020 at 11:29AM
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