Freedom from Religion Found., Inc. v. Abbott

Decision Date03 April 2020
Docket NumberNo. 18-50610,18-50610
Parties FREEDOM FROM RELIGION FOUNDATION, Incorporated, Plaintiff - Appellee Cross - Appellant v. Greg ABBOTT Governor of the State of Texas, Chairman of the State Preservation Board ; Rod Welsh, Executive Director of Texas State Preservation Board, Defendants - Appellants Cross - Appellees
CourtU.S. Court of Appeals — Fifth Circuit

955 F.3d 417

FREEDOM FROM RELIGION FOUNDATION, Incorporated, Plaintiff - Appellee Cross - Appellant
v.
Greg ABBOTT Governor of the State of Texas, Chairman of the State Preservation Board ; Rod Welsh, Executive Director of Texas State Preservation Board, Defendants - Appellants Cross - Appellees

No. 18-50610

United States Court of Appeals, Fifth Circuit.

FILED April 3, 2020


Richard L. Bolton, Boardman & Clark, L.L.P., Madison, WI, for Plaintiff - Appellee Cross-Appellant

Kyle Douglas Hawkins, Lanora Christine Pettit, Office of the Attorney General, Office of the Solicitor General, Austin, TX, for Defendant - Appellant Cross-Appellee

Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Texas Governor Greg Abbott and Texas State Preservation Board Executive Director Rod Welsh appeal a district court judgment declaring that they violated the First Amendment rights of Freedom From Religion Foundation, Incorporated ("FFRF"). However, appellants do not challenge the merits of the district court’s finding that they violated FFRF’s First Amendment rights by engaging in viewpoint discrimination. Rather, they argue, based on principles of sovereign immunity, that the district court lacked jurisdiction to enter retrospective relief against them. They further argue that there is no longer jurisdiction to enter prospective relief because the controversy is not ongoing. FFRF cross-appeals the district court’s failure to grant prospective injunctive relief and the district court’s summary judgment dismissal of FFRF’s unbridled discretion

955 F.3d 421

First Amendment claims against Governor Abbott and Mr. Welsh.

We find that the district court had jurisdiction to entertain this suit. FFRF sought prospective relief, and there was, and still is, a live controversy between the parties. However, the district court did not have jurisdiction to enter a retrospective declaratory judgment. Therefore, we VACATE the judgment and REMAND to the district court to consider FFRF’s request for injunctive relief and enter appropriate prospective relief for FFRF. Additionally, we REVERSE the district court’s grant of summary judgment on FFRF’s unbridled discretion claims, clarify the appropriate application of the unbridled discretion doctrine in the context of a limited public forum, and REMAND for the district court to apply that standard in the first instance.

I

The Texas State Preservation Board ("the Board") is a state agency that preserves and maintains the Texas Capitol and its grounds. TEX. GOV’T CODE § 443.007(a)(1). Governor Abbott is the chairman of the Board, which allows private citizens to display exhibits within the Texas Capitol building. TEX. GOV’T CODE § 443.004(a) ; TEX. ADMIN. CODE § 111.13. Each exhibit application must be sponsored by the Governor, the Lieutenant Governor, a member of the Texas Senate, or a member of the Texas House of Representatives. TEX. ADMIN. CODE § 111.13. Each exhibit must also serve a "public purpose," defined as:

The promotion of the public health, education, safety, morals, general welfare, security, and prosperity of all of the inhabitants or residents within the state, the sovereign powers of which are exercised to promote such public purpose or public business. The chief test of what constitutes a public purpose is that the public generally must have a direct interest in the purpose and the community at large is to be benefitted. This does not include activities which promote a specific viewpoint or issue and could be considered lobbying. Political rallies, receptions, and campaign activities are prohibited in the public areas of the Capitol.

Id.

FFRF is a non-profit organization that advocates for the separation of church and state and educates on matters of nontheism. On July 20, 2015, after FFRF learned that a Christian nativity scene had been approved by the Board and displayed in the Texas State Capitol, FFRF submitted an application to the Board regarding a Bill of Rights nativity exhibit. The application requested that the exhibit be displayed in the Texas Capitol building from December 18, 2015 to December 23, 2015. The application was sponsored by Texas Representative Donna Howard, and it included the following "artist’s mockup and diagram" of the proposed display, which depicts Benjamin Franklin, Thomas Jefferson, George Washington, and the Statute of Liberty gathered around a manager containing the Bill of Rights.

955 F.3d 422

The display was to be accompanied by a banner reading, "Happy Winter Solstice / At this Season of the Winter Solstice, we honor reason and the Bill of Rights (adopted December 15, 1791) / Keep State & Church Separate / On Behalf of Texas Members of the Freedom From Religion Foundation." According to the application, the exhibit had several purposes: "[t]o educate the public," to "celebrate the 224th anniversary of the ratification of the Bill of Rights," "to celebrate the Winter Solstice on December 22," and "to educate the public about the religious and nonreligious diversity within the State." The Board approved the application, and, at the request of the Capitol Events and Exhibits Coordinator, the following language was added to the banner: "Private display, not endorsed by the state."

FFRF’s exhibit was displayed in the Texas Capitol building from December 18, 2015 to December 22, 2015. The day before the display was to be taken down, Governor Abbott sent a letter to then Executive Director of the Board John Sneed urging him to "remove this display from the Capitol immediately." The letter explained that the exhibit was inappropriate for display because "[s]ubjecting an image held sacred by millions of Texans to the Foundation’s tasteless sarcasm does nothing to promote the morals and the general welfare," "the 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," and "it is hard to imagine how the general public ever could have a direct interest in

955 F.3d 423

mocking others’ religious beliefs." Mr. Sneed removed the exhibit that same day.

On July 21, 2016, FFRF submitted another exhibit application that was identical to the previous application. On August 8, 2016, Mr. Sneed stated that "any application to display the same exhibit which was removed last year will be denied for failure to satisfy the public purpose requirement." Citing to the letter from Governor Abbott, Mr. Sneed explained that the exhibit does not promote a public purpose because "the exhibit purposefully mocked Christians and Christianity by crudely satirizing one of the most sacred symbols of the Christian faith."

In February 2016, FFRF filed a complaint against Governor Abbott and Mr. Welsh in their individual and official capacities, alleging: (1) a free-speech claim under the First Amendment; (2) an equal protection claim under the Fourteenth Amendment; (3) a claim under the Establishment Clause of the First Amendment; (4) a claim of unbridled discretion under the First Amendment; and (5) a due process claim under the Fourteenth Amendment.1 FFRF sought declaratory and injunctive relief, including a declaration "that the criteria to approve exhibits for display in the State Capitol, facially and/or as applied by the Defendants, violate" the First Amendment and an injunction preventing "the Defendants from excluding the Plaintiff’s exhibit at issue from future display."

On June 21, 2016, the district court dismissed the claims against Mr. Welsh in his individual capacity on qualified immunity grounds. On December 20, 2016, the district court granted Governor Abbott and Mr. Welsh summary judgment on FFRF’s equal protection, due process, and unbridled discretion claims. On October 13, 2017, the district court granted FFRF summary judgment on its viewpoint discrimination First Amendment claims against Governor Abbott and Mr. Welsh in their official capacities and dismissed the Establishment Clause claim against Governor Abbott in his individual capacity on qualified immunity grounds. The district court found that there remained a material dispute of fact as to FFRF’s Establishment Clause claims against Governor Abbott and Mr. Welsh in their official capacities and FFRF’s viewpoint discrimination First Amendment claim against Governor Abbott in his individual capacity.

On May 11, 2018, the parties filed a joint stipulation of voluntary dismissal as to the remaining claims. The court dismissed the remaining claims on May 14, 2018 and entered a final judgment on June 19, 2018. In relevant part, the final judgment stated:

IT IS ORDERED, ADJUDGED, and DECREED that judgment is granted in favor of FFRF on FFRF’s First Amendment freedom of speech claim; and

IT IS FURTHER DECLARED that Defendants violated FFRF’s First Amendment rights and engaged in viewpoint discrimination as a matter of law when the FFRF’s exhibit was removed from the Texas Capitol building under the circumstances of this case.

The parties timely appealed and cross-appealed.

II

"We review questions of federal jurisdiction de novo." Envtl. Conservation Org. v. City of Dallas , 529 F.3d...

To continue reading

Request your trial
36 cases
  • Viewpoint Neutrality Now v. Regents of the Univ. of Minn.
    • United States
    • U.S. District Court — District of Minnesota
    • February 2, 2021
    ..., 790 F.3d 328, 343–44 (2d Cir. 2015), superseded in part on rehearing , 611 F. App'x 741 (2d Cir. 2015) ; Freedom From Religion Found. v. Abbott , 955 F.3d 417, 428 (5th Cir. 2020) ; Kaahumanu v. Hawaii , 682 F.3d 789, 806 (9th Cir. 2012) ; Summum v. Callaghan , 130 F.3d 906, 919–20 (10th ......
  • Denton v. City of El Paso
    • United States
    • U.S. District Court — Western District of Texas
    • July 28, 2020
    ...narrow, objective, and definite standards to guide the licensing authority, [are] unconstitutional." Freedom From Religion Found. v. Abbott , 955 F.3d 417, 427 (5th Cir. 2020) (quoting Shuttlesworth , 394 U.S. at 150–51, 89 S.Ct. 935 ). "[T]he constitution requires ... neutral criteria to [......
  • Pool v. City of Hous.
    • United States
    • U.S. District Court — Southern District of Texas
    • February 22, 2022
    ...it is not "absolutely clear" that the City will not enforce the Charter provisions in the future. Freedom From Religion Found. v. Abbott , 955 F.3d 417, 425 (5th Cir. 2020) ("A defendant claiming that is voluntary compliance moots a case bears the formidable burden of showing that it is abs......
  • People for the Ethical Treatment of Animals v. Hinckley
    • United States
    • U.S. District Court — Southern District of Texas
    • March 15, 2021
    ...in light of the purpose served by the forum and (2) viewpoint-based censorship.’ " Id. (quoting Freedom from Religion Found. v. Abbott , 955 F.3d 417, 429 (5th Cir. 2020) ).PETA does not concede but assumes for the purposes of the motion to dismiss that the forum is nonpublic. Dkt. 16. It a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT