One of the images that FFRF wished to display in the Texas capitol. Source: New York Post.

Late last month, a federal court in Texas denied a motion for summary judgment filed by the State of Texas in a case challenging the state’s policy for allowing privately-sponsored displays in the state capitol building.

The Texas State Preservation Board allows private individuals and groups to display exhibits “for a public purpose” in the public areas of the Texas state capitol building, subject to the board’s approval.  A private group, Freedom From Religion Foundation, which advocates for separation of church and state, wished to display an exhibit in December 2015 depicting life-size figures celebrating the birth of the Bill of Rights, along with a banner that read: “At this season of the Winter Solstice, LET REASON PREVAIL.  There are no gods, no devils, no angels, no heaven or hell. There is only our natural world. Religion is but myth & superstition that hardens hearts & enslaves minds.”

After email exchanges with a state representative who sponsored the exhibit, some revisions were made to the exhibit and the exhibit was allowed to be displayed in the capitol, beginning on December 18, 2015.  Four days later, however, the Governor of Texas, Greg Abbott, expressed displeasure with the exhibit to the board, and the exhibit was taken down immediately thereafter. The following July, the group sought to display a similar exhibit, but the board denied the application.

Subsequent thereto, FFRF filed First Amendment free speech, Equal Protection, First Amendment Establishment Clause, unbridled discretion, and Due Process Clause claims.  On the state’s motion for summary judgment, the court rejected most of the state’s arguments on the First Amendment claims.

First, over the state’s arguments to the contrary, the court found that the exhibits in the state capitol did not constitute government speech. Using the three-part test derived from Walker v. Texas Division, Sons of Confederate Veterans, the court found that the capitol exhibits were not historically used by the government to speak and that a reasonable observer would not understand the exhibits to be the speech of the government, even though the state maintained control over the exhibits in the capitol.

Second, although the plaintiff argued that the capitol building’s public spaces were a traditional public forum or, in the alternative, a designated public forum, the court found that the capitol’s public spaces were a limited public forum.  Although the state opened the capitol for some exhibits, the court found that the state did not intend to open the capitol as a space for public discourse.  The court then found that the state acted reasonably in excluding the FFRF exhibit due to concerns that the exhibit would mock or offend Christians.  However, the court refused to grant summary judgment to the state, because the court found that additional factfinding would be necessary to determine whether the state’s exclusion of the FFRF exhibit constituted discrimination based on viewpoint.  Specifically, the court showed concern regarding the circumstances of the board’s post-approval rejection of FFRF’s exhibit.

The court also went on to deny the defendants’ summary judgment motion on the Equal Protection Clause and Establishment Clause claims.  The court granted the state’s summary judgment motion on the unbridled discretion and Due Process Clause claims.

Freedom From Religion Foundation, Inc. v. Abbott, No. A-16-CA-00233-SS, 2016 WL 7388401 (W.D. Tex. Dec. 20, 2016).

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Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.