5th Circuit: FFRF's Suit Against Texas Governor Is Moot

In Freedom From Religion Foundation, Inc. v. Abbott, (5th Cir., Jan.  27, 2023), the U.S. 5th Circuit Court of Appeals held that FFRF's suit against the Governor of Texas for wrongfully removing its display from the state Capitol became moot when the Texas State Preservation Board repealed the rule that had allowed private displays in the Capitol. The court said in part:

It is not seriously disputed that the Foundation’s exhibit satisfied the requirements for display or that the Board’s removal of the exhibit violated the First Amendment restrictions concerning speech communicated in a limited public forum. ...

Because the Foundation’s injury is premised on exclusion from expressing its message in a public forum, and because the public forum no longer exists, the permanent injunctive relief ordered by the district court cannot remain.

The court, however, refused to vacate the trial court's order and declaratory judgment, saying that "they might provide important guidance to future disputes." (See prior related posting.)

Court Refuses To Enjoin City's Holiday Display Policy

In Knights of Columbus Star of the Sea Council 7297 v. City of Rehoboth Beach, Delaware, (D DE, Dec. 11, 2020), a Delaware federal district court refused to issue a preliminary injunction against the city's policy on religious displays at the Rehoboth Beach Bandstand. Plaintiffs want to continue their past practice of erecting a creche on the site for the Christmas season. The city's policy, which allegedly at one time banned religious displays of all kinds, was revised while this litigation was pending so that it now prohibits only any unattended private display on city property. However it permits attended religious and secular displays. The court said in part:

[B]ecause the motion is directed to a policy that no longer exists (if it ever did) and there is no realistic chance the alleged unconstitutional conduct will be resumed before the Court can reach the merits of the case, the motion must be denied as moot. It is also unripe. The Knights is free to apply to display an attended creche, but it has not yet done so. Finally, ... even assuming Plaintiff has established a likelihood of success on the merits, the motion must be denied because Plaintiff has failed to show it will suffer irreparable harm in the absence of preliminary injunctive relief.

VA Will Remove Unauthorized Religious Additions To Medical Center Display

As previously reported, earlier this month a suit was filed in New Hampshire federal district court against a VA Medical Center challenging a lobby "Missing Man" display that includes a Bible that was carried by a prisoner of war in World War II.  Yesterday, according to the New Hampshire Union Leader, a patient at the VA Center added items representing different religious traditions to the display--  books from the Jewish, Muslim, Mormon and Wiccan faiths, and a blank tablet to represent non-faith traditions. The VA is not happy about the additions. A spokesman said:

We will not tolerate interference with and/or alteration of approved displays — such as this Northeast POW/MIA Network-sponsored POW/MIA table — and as a result these items will be removed.

Texas Engaged In Viewpoint Discrimination In Removal of Bill of Rights Nativity Display

In Freedom From Religion Foundation, Inc. v. Abbott, (WD TX, Oct. 13, 2017), a Texas federal district court held that Texas Governor Greg Abbott and the Texas State Preservation Board violated the free speech rights of Freedom From Religion Foundation when, at the governor's order, FFRF's Bill of Rights nativity display was removed from the state capitol rotunda where it had been erected under a limited public forum policy. (See prior related posting.)  The governor claimed that the display did not serve a "public purpose" because of its mocking and satirical tone.  The court held that whether the exhibit was removed because of its satiric tone or because of its non-theistic point of view, either motive constitutes impermissible viewpoint discrimination.

The court went on to deny summary judgment to defendants on FFRF's Establishment Clause claim because material questions of fact remain as to defendants' purpose in excluding the exhibit.  It rejected the governor's claim of qualified immunity as to the free speech claim, but granted it as to the Establishment Clause claim. Friendly Atheist blog has more on the decision.

Controversy Brews Over Holiday Display of Pentagram Monument

Controversy over December holiday displays has begun early this year in Boca Raton, Florida.  A city ordinance allows residents to put up unattended displays during the holiday season in Sanborn Square, a city park.  According to yesterday's Christian Times, a local teacher has filed an application to set up a 300-pound metal Pentagram honoring Satan this December.  The display would include captions such as "In Satan We Trust," "One Nation under Antichrist" and "May the Children Hail Satan."  The teacher also wants to set up a Freedom From Religion Nativity Display.  A local pastor has reacted by saying: "It’s evil, it’s the essence of evil. I will take the responsibility for taking the sledgehammer and knocking it down."

Removal of Secular "Nativity Scene" May Be Viewpoint Discrimination

In Freedom From Religion Foundation v. Abbott, (WD TX, Dec. 20, 2016), a Texas federal district court allowed plaintiff to move ahead with one aspect of its free speech claim in its challenge to the Texas governor's order removing from the Texas State Capitol exhibition area plaintiff's Bill of Rights "Nativity Scene." The display was accompanied by a banner that focuses on the Winter Solstice and separation of church and state.  The Texas State Preservation Board originally approved the display, but Texas Gov. Greg Abbott who is executive director of the Board instructed that it be taken down.  He contended that the display did not meet the requirement of promoting a "public purpose." The court held:

In this case, a genuine issue of material fact exists as to whether Defendants' decision to remove FFRF's exhibit constitutes viewpoint discrimination.

Plaintiff's other 1st and 14th Amendment challenges were dismissed. Dallas News reports on the decision.

FFRF Sues Over Governor's Removal of Bill of Rights "Nativity" Display

As previously reported, last December Texas Gov. Greg Abbott, as chairman of the Texas State Preservation Board, forced the executive director of the Board to remove from the state capitol rotunda a previously-approved display by the Freedom From Religion Foundation of a Bill of Rights "nativity" scene.  The display included figures of the founding fathers and a sign about the Winter solstice. The Governor complained that the display mocks Christians and Christianity. Yesterday, FFRF filed a lawsuit challenging the governor's action and requesting a declaratory judgment, injunction and nominal damages. The complaint (full text) in Freedom From Religion Foundation, Inc. v. Abbott,  (WD TX, filed 2/25/2016), contends:

Defendants have violated the Plaintiff’s Free Speech, Equal Protection and Due Process rights, and ... have violated the Establishment Clause, by removing and excluding the Plaintiff’s protected speech, a display, from a public forum, because of the content of the Plaintiff’s speech.

FFRF issued a press release announcing the filing of the lawsuit.

FFRF's Secular Nativity Display Removed From Texas Capitol After It Provokes Ire of Governor

The Texas State Preservation Board has a policy that allows displays in public areas of the Capitol upon filing of an appropriate application and a letter of sponsorship from the governor, lieutenant governor or a member of the state legislature.  Receiving approval of its application, on December 18 the Freedom From Religion Foundation put up a Bill of Rights Nativity display which it describes as:

featur[ing] Founding Fathers Benjamin Franklin, Thomas Jefferson, and George Washington gathered in reverence before the Bill of Rights, overseen by the Statue of Liberty. In addition to the "nativity," the display also features a sign celebrating the Winter Solstice.

However, three days later the exhibit was removed after Governor Greg Abbott expressed strong opposition to it.  In a letter (full text) to the Executive Director of the State Preservation Board, the governor (who is Chairman of the Board) contended that the display did not meet the requirement that approved displays promote a "public purpose."  He wrote in part:

[T]he 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 Foundation’s tasteless sarcasm does nothing to promote morals and the general welfare. To the contrary, the Foundation’s spiteful message is intentionally designed to belittle and offend....

This is not an exhibit that spreads a secular message in an effort to educate the public about nonreligious viewpoints; it instead denigrates religious views held by others.... [T]he 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.

City Will Sue Church Over Ownership of Land On Which Religious Welcome Sign Stands

In Hawkins, Texas, on a 50' x 45' parcel of land between two roads, visitors are greeted with a sign reading "Jesus welcomes you to Hawkins".  In June, the Freedom From Religion Foundation wrote the city objecting to the sign (see prior posting), and in September city council voted to remove it. Tuesday's Tyler Morning Telegraph recounts what happened next. Almost immediately after the vote, members of the Jesus Christ Open Altar Church cordoned off the site on which the welcome sign stands, and had members guarding the site at all hours of the day and night. The Church then purported to buy the land and sign from two funeral homes.  But the city attorney says that the funeral homes did not own the land, so that their deeds to the church conveyed nothing.  On Tuesday, City Council voted to sue the Church and the funeral homes to establish the city's ownership of the property, even though Hawkins' mayor disagrees with City Council's decision.

County Tries To Neutralize Courthouse Drawing of Jesus By Hanging Many Other Paintings

The Lexington Herald-Leader on Monday reported that a Kentucky county judge-executive responded to a complaint about a picture of Jesus hanging in the local courthouse by inviting local artists to submit other pictures to hang along side it.  After the Freedom From Religion Foundation sent a letter to Breathitt County Judge-Executive John Lester “JL” Smith in August asking him to remove the drawing of Jesus, Smith's response was to seek other artwork so that the walls now feature everything from landscapes to a portrait of Rachel Maddow to a drawing of Mr. Magoo.  An FFRF attorney argues however that this does not cure the original religious purpose for hanging the charcoal of a man kneeling before Jesus with the caption "In your place what would Jesus do."

9th Circuit Rejects Challenge To Big Mountain Jesus Statue

In Freedom From Religion Foundation v. Weber, (9th Cir., Aug. 31, 2015), the U.S. 9th Circuit Court of Appeals in a fragmented decision upheld the district court's rejection of a challenge to the Jesus statue on Montana's Big Mountain.  Judge Owens' opinion concluded that the Forest Service's renewal of the special use permit allowing the statue to remain on federal land did not violate the Establishment Clause.  The decision to renew reflected primarily a secular purpose and did not constitute an endorsement of religion.  Judge Owens said in part:

besides the statue’s likeness, there is nothing in the display or setting to suggest a religious message.... the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in mardi gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures....

Judge Smith, concurring, said in part:

Given the assumption made by both the majority and the dissent—that the Forest Service’s action (the renewal of a special use permit) constituted government action that could violate the Establishment Clause—I agree with the majority..... However, I write separately, because the assumption is incorrect. The Forest Service’s renewal of a special use permit for an existing monument does not constitute government speech.

Judge Pregerson dissenting said in part:

First, despite arguments to the contrary, a twelve-foot tall statue of Jesus situated on government-leased land cannot realistically be looked upon as “predominantly secular in nature.”... Second ... I submit that a “reasonable observer would perceive” the statue situated on government land “as projecting a message of religious endorsement.”

The Helena Independent Record reports on the decision.

Court Upholds City's Decision To End Display of Christian Cross

On Tuesday, an Ottawa County, Michigan trial court judge dismissed a lawsuit seeking to force the city of Grand Haven to resume displaying a 48-foot Christian cross on Dewey Hill, a city-owned sand dune. Plaintiffs object to City Council's decision to turn the cross into a Coast Guard anchor. (See prior posting.) As reported by MLive, a group of seven residents sued the city alleging that the city's decision amounted to unconstitutional regulation of  speech in a traditional public forum and discriminated on the basis of religion. However the court held that the display is governmental speech and "the City has the right to determine what messages it sends through the use of its own governmental property." (See prior related posting.)

Proposed Hindu Statue At Arkansas Capitol Turned Down Initially

In Arkansas, a request by the Universal Society of Hinduism to place a privately-financed statute of the Hindu god Lord Hanuman on the grounds of the state Capitol has been rejected by the Secretary of State's office.  Arkansas News Bureau reported last Friday that Chief Deputy Secretary of State Kelly Boyd told the Hindu group that it is the State Capitol Arts and Grounds Commission that is responsible for approving monuments on the Capitol grounds.  The Hindu group's request follows the state legislature's approval in April of a Ten Commandments monument at the Capitol. (See prior posting.) The Secretary of State's office suggested that the Hindu group seek similar legislative approval. The group says it may send its request to the governor.  According to Merinews, Christian, Buddhist, Jewish, Baha'i and other faith leaders have backed the Hindu group's request.  [Thanks to Scott Mange for the lead.]

County Will Consider Moving Memorial Containing Ichthus

At its meeting today, the Boone County, Missouri Commission will hear the first reading of a proposal to recommend moving of a monument, now on the county courthouse grounds, to the Columbia City Cemetery to alleviate church-sate concerns. (News Release.) As reported by the Columbia Daily Tribune, the monument, erected with private funds in 1992, is a tribute to two Boone County men killed in Operation Desert Storm. At the bottom of the monument is an Ichthus (Christian fish) symbol.  In 2014, after a complaint about the monument from Americans United, the County Commission ordered the Ichthus symbol covered with a plaque reading "Dedicated in 1992."  Now the County Commission has obtained a lengthy opinion of counsel (full text) concluding that continued location and maintenance with public funds of the memorial on the courthouse grounds would likely be found by a court to violate the Establishment Clause and church-state separation requirements of the Missouri Constitution.  Today's resolution will propose moving the monument and removing the plaque covering the Ichthus symbol. It will also consider a policy on future monuments.

9th Circuit Hears Oral Arguments In Challenge To Big Mountain Jesus Statue

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments (video of full arguments) in Freedom From Religion Foundation v. Weber. In the case, a Montana federal district court rejected an Establishment Clause challenge to the U.S. Forest Service's renewal of  of a Special Use Permit issued to the Knights of Columbus to allow the organization to continue to maintain a statue of Jesus near a ski slope on Montana's Big Mountain. The trial court found that the statue has lost its religious connotation. (See prior posting.) AP reports on yesterday's arguments.

9th Cirucit Upholds Ban on Christmas Display In Palisades Park

In Santa Monica Nativity Scenes Committee v. City of Santa Monica, (9th Cir., April 30, 2015), the U.S. 9th Circuit Court of Appeals rejected free speech and Establishment Clause challenges to Santa Monica's repeal of a policy that, as an exception to a general ban on unattended displays, allowed  unattended Winter Displays in the city's Palisades Park. Since 1955, during December local residents  (and later the Nativity Scenes Committee) have erected dioramas in the Park depicting the Biblical story of Christmas. A policy enacted in 2003 allocated space on a first-come-first-served basis. However beginning in 2011, atheists who opposed Christmas displays in the Park, flooded the city with requests for their own displays and the city moved to a lottery system for allocating space. Rather than continuing to deal with this, in 2012 the city repealed the exception that allowed Winter Displays, and the Nativity Scenes Committee sued. The court held that the Ordinance repealing the Winter Display exception was a narrowly tailored neutral time, place and manner regulation that serves a substantial governmental interest and leaves open ample alternative channels of communication. The court refused to extend the "heckler's veto" doctrine to this situation. Finally the court rejected challengers' claim that the repeal violated the Establishment Clause by conveying hostility toward Christianity. Thompson/ Reuters reports on the decision.

Suit Challenges Quote From British Jurist Posted In Rhode Island's High Court

A Rhode Island lawyer this week filed a federal lawsuit challenging a quotation from British jurist Sir Edward Coke inscribed above the bench of the Rhode Island Supreme Court. The complaint (full text) in Gelfuso v. Suttell, (D RI, filed 3/4/2015) alleges in part:

6. Inscribed above the bench of the Rhode Island Supreme Court are the words "Non Sub Homine Sed Sub Deo Et Lege" ....

7. On information and belief, this is a phrase which translates as "Not under man, but under God and law."

8. Plaintiff considers this inscription as conveying a government endorsement of religion and a particular religious viewpoint with which Plaintiff does not agree.

Plaintiff not only seeks an injunction against displaying the inscription, but also an injunction against the court's continued distribution of an allegedly misleading publication that describes the quote's history and Lord Coke's relationship with Rhode Island's founder Roger Williams. The complaint alleges:

15. Though the publication portrays Lord Coke as a defender of freedom and equality defying a tyrannical king, Coke had actually been a persecutor of religious and political dissidents in England who had supported the ecclesiastical court of the High Commission and its counterpart the Star Chamber.

16. While Coke had mentored Roger Williams as a youth, Roger Williams later denounced Coke's views regarding religious persecution, the separation of church and state, and the Church of England, which eventually led to his own religious persecution and the founding of Rhode Island.

The full complaint makes fascinating reading for fans of English legal history. GoLocalProv carries a lengthy story on the lawsuit.

Settlement Requires Michigan City To Allow "Reason Station" Near "Prayer Sation" In City Hall

Yesterday, a federal district court approved a settlement in a suit brought by an atheist who was refused space for a table in the atrium of Warren, Michigan's city hall for a "reason station,"  even though the city had permitted a local pastor to operate a "prayer station" in the atrium since 2009. (See prior posting.) The court's order (full text) in Marshall v. City of Warren, (ED MI, Feb. 23, 2015) requires the city to allow the Reason Station to operate on terms no less favorable than those granted to the Prayer Station. The city must also pay attorneys' fees of $100,000 to the ACLU of Michigan. The ACLU issued a press release calling the settlement "a complete win for our side and for the First Amendment." The Detroit Free Press had additional background.

City Settles Suit Challenging Christian Symbols At Veterans' Memorial

The King, North Carolina city council voted 3-2 on Tuesday to settle a federal lawsuit that had been filed against it in 2012 claiming that the design and flag policy of a Veterans' Memorial built by the city unconstitutionally advanced Christianity. (See prior posting.)  According to Stokes News, under the settlement the city will repeal a policy which resulted in a Christian flag often being flown on one of the flag poles at the memorial.  Under the settlement, the city has also already removed the statute of a soldier kneeling before a cross that was part of the memorial. The city will also pay $500,000 in legal fees to Americans United, and $1 in nominal damages to the plaintiff in Hewett vs. City of King.  The city agreed to the settlement when it became clear that the cost of going to trial might reach $2 million and greatly exceed the city's insurance policy limits, and that the city might lose its insurance coverage.  Councilman Brian Carico, one of the two voting against the settlement, said:

... before I am a council member, before I am a husband, before I am a father or a brother or a son, ... I am a Christian.... Every word and deed I do is supposed to be in the name of Jesus Christ.... I can’t vote to remove anything from that memorial because the intent is not there for anyone to be offended. Every veteran that memorial honors took an oath of God and country and they knew what God they were speaking of.

Schools' Religious-Themed Snow Plow Decorations Rejected By City

For the last 5 years, the city of Sioux Falls, South Dakota has sponsored a "Paint the Plows" program.  Each participating public or private school is loaned a city snow plow and students use their artistic abilities to decorate the large plow blade.  Yesterday's Sioux Falls Argus Leader, however, reported that this year the designs painted on plow blades by two Lutheran schools brought complaints from a board member of the Siouxland Freethinkers. High school students painted their blade red and inscribed it in large white letters with the words "Jesus Christ."  The elementary and middle school painted its plow blade with the words "Happy birthday Jesus."  (Similar religious expressions were used last year without complaint.) After receiving this year's complaints, the city talked with the schools about creating a different design. At least the high school has decided to just let the city paint over the plow blade.

UPDATE: The Oct. 28 Argus Leader reports that Sioux Falls Mayor Mike Huether says that the city will not paint over the religious themed snow plow blades unless a court case says that it must, while city attorney David Pfeifle is taking a more nuanced approach, saying: "Our goal is to not paint them over, And we're exploring every option."