The Freedom From Religion Foundation filed a federal lawsuit on February 25, 2016, challenging the remove of its approved Bill of Rights "nativity" display from the Texas State Capitol by Texas Governor Greg Abbott. FFRF had a permit and a legislative sponsor for its display. Abbott, as chair of the Texas State Preservation Board, ordered the display taken down only three days after it was erected on Dec. 18, 2015, lambasting it as indecent and mocking and contributing to public immorality.
The whimsical exhibit, designed by artist Jake Fortin, commemorates the "birth" of the Bill of Rights (which was adopted on Dec. 15, 1791), depicts the founding fathers and the Statue of Liberty crowded adoringly around a manger scene containing the constitutional document. FFRF placed the display to counter a Christian nativity display placed at the Capitol in 2014 and 2015. The display also featured a sign celebrating the Winter Solstice.
On October 13, 2017, Judge Sam Sparks ruled that the State Preservation Board violated FFRF’s free speech rights when it removed FFRF’s display from the Capitol as a matter of law. FFRF then voluntarily dismissed its other, unresolved claims in order to secure a final judgment against Governor Abbott and the Board, which was entered on June 19, 2018.
Abbott appealed the district court's ruling to the 5th Circuit in July 2018, where he argued that the district court entered an impermissible declaration that doesn't properly constrain the Board's future conduct. Abbott did not challenge the district court's ruling that he and the Board engaged in viewpoint discrimination by removing FFRF's display. FFRF filed a cross-appeal, arguing that it is entitled to an injunction and that the Board's "public purpose" requirement is unconstitutional on its face.
In April 2020 a three-judge panel of the 5th Circuit Court of Appeals released a unanimous opinion in favor of FFRF. This judgment remanded the case to the Western District of Texas, who previously ruled in FFRF’s favor, in order to fashion a more comprehensive remedy that would prevent future censorship.
On remand, Gov. Abbott and the board employed a new tactic to try to nullify the lawsuit. Two weeks before the parties’ briefs were due to the district court, the board made slight adjustments to its exhibit policies, including a dubious declaration that all future exhibits in the Capitol would be considered “government speech.” In its subsequent briefing to the district court, FFRF successfully argued that these surface-level changes did not alter the true nature of the forum for citizen speech in the Texas Capitol.
In May 2021 FFRF was granted permanent relief after a six-year battle. Judge Lee Yeakel rejected Gov. Abbott's argument that FFRF’s lawsuit no longer involved a live controversy and that the case was thus moot. The court declared that Gov. Abbott and the State Preservation Board violate FFRF’s First Amendment Rights and engage in viewpoint discrimination when they exclude the exhibit from display. The district court also enjoined Abbott and the board from censoring FFRF’s speech in the future. Governor Abbott and the State Preservation Board appealed the ruling on remand back to the Fifth Circuit. This second appeal is underway, with oral argument expected to take place in early 2022 and a decision to follow.
FFRF is represented by Associate Counsel Sam Grover and Senior Counsel Patrick Elliott in the case, with attorney Rich Bolton of Boardman and Clark LLP serving as litigation counsel. The District Court case number is 1:16-cv-00233 and the current Appeals Court number is 21-50469.
Documents on Appeal
Documents on Remand
Documents on Second Appeal
The Freedom from Religion Foundation along with a coalition of service and advocacy organizations have filed a lawsuit against eight federal agencies for undoing rules that protect those receiving social services from being discriminated against.
Previously, federal rules had required faith-based organizations that provided critical, tax-payer funded services to inform recipients of their legal right to not be discriminated against, not to have to attend religious programming, and to be given the option for a referral to an alternate provider. The rules helped protect the most vulnerable from being forced to attend a Bible study or join in a prayer in order to access basic rights such food or shelter. Now, those who are seeking these services may needlessly opt into religious activities or forgo assistance altogether in order to avoid participation.
This lawsuit seeks to have this new rules declared a violation of the Administrative Procedures Act and reverse the rollback of these important protections.
The case (1:21-cv-00475) is in the US District Court for the Southern District of New York. This case is currently stayed while the new Biden administration proposes changes to the rules.
FFRF filed a lawsuit against Justice of the Peace Wayne Mack on May 29, 2019, due to his refusal to end the divisive practice of opening each of his court sessions with chaplain-led prayer.
Despite numerous complaints regarding the practice, which was not commonly done in other courtrooms anywhere in the country, Judge Mack insisted on opening his court session with chaplain-led prayer. Attendees reported Judge Mack surveying the courtroom during prayers and feeling that their cases may have been affected by how they chose to react.
Judge Mack had his courtroom bailiff announce the prayers and state that anyone may leave the courtroom and their case will not be affected, although the courtroom doors are locked to those outside. Then Judge Mack would enter, talk about his chaplaincy program, introduce a chaplain, and give the name and location of the chaplain's church. While everyone in the courtroom remained standing, the chaplain, who was almost always Christian, delivered a prayer, with no guidelines from Judge Mack regarding permissible content.
On May 21st, 2021, Judge Hoyt ruled in favor of FFRF and local attorney “John Roe,” stopping Judge Mack from conducting courtroom prayer in the future. The decision stated that Judge Mack violated the Establishment Clause by having chaplain-led prayer in front of a captive audience. If he attempts to violate the court’s order, an injunction will be issued. This ruling follows an order granting default judgment against Judge Mack in his official judicial capacity.
This lawsuit came after FFRF’s initial lawsuit against Montgomery County, challenging the same practice, was dismissed without prejudice on September 27, 2018, for lack of redressability, without reaching the merits of the constitutional claims. U.S. District Court Judge Ewing Werlein Jr., for the Southern District of Texas in Houston, dismissed the original case because the only defendant was Montgomery County, which has no control over Mack’s courtroom practices.
The anonymous “John Roe” plaintiff was represented by FFRF Associate Counsel Samuel Grover, with FFRF Associate Counsel Elizabeth Cavell and Attorney Ayesha Khan of Washington, D.C. serving as co-counsel. The lawsuit was Case No. 19-cv-1934 in the Southern District of Texas, with Judge Kenneth M. Hoyt presiding.
The Freedom From Religion Foundation and two local members filed suit on July 31, 2018, against the City of Parkersburg, W.Va., in a challenge to the City Council’s practice of reciting the “Lord’s Prayer” at each meeting.
Parkersburg residents Eric Engle and Daryl Cobranchi assert in the case that their ability to participate in city meetings has been negatively impacted by the prayers. Council members and the majority of meeting attendees recite the Lord’s Prayer in unison at the beginning of the bi-monthly council meetings. At least one member of the City Council has been openly hostile to people who do not participate in the prayer.
The plaintiffs also filed a motion for a preliminary injunction on July 31, 2018, which would prohibit the City Council from continuing to open its meetings with Christian prayers led by council members. The case (No. 2:18-cv-01198) is before Judge John T. Copenhaver, Jr., of the U.S. District Court for the Southern District of West Virginia.
The Freedom From Religion Foundation and a coalition of plaintiffs filed a lawsuit on May 23, 2018, against Arkansas Secretary of State Mark Martin seeking the removal of a massive Ten Commandments structure from the grounds of the Arkansas Capitol.
FFRF and its co-plaintiffs assert that this installation is in clear violation of constitutional precepts. The plaintiffs include FFRF, the American Humanist Association, the Arkansas Society of Freethinkers, as well as seven individual plaintiffs who are religious and nonreligious citizens of Arkansas.
“The state of Arkansas has erected an enormous religious monolith on government property in blatant disregard for the First Amendment to the United States Constitution,” the suit states. “The new monolith — a 6-and-one-third-foot tall Ten Commandments statue — stands prominently on the state Capitol grounds.”
The suit details how the Arkansas Legislature initiated this unconstitutional move.
“In 2016, the Arkansas General Assembly enacted Act 1231, the Ten Commandments Monument Display Act,” it states. “The purpose of the act was to permit the placing of a monument to the Ten Commandments on the grounds of the Arkansas state Capitol. The exact text of such a monument was prescribed by the General Assembly.”
The plaintiffs seek a declaration that the monument is unconstitutional, an injunction directing the defendant to remove the monument, and costs and attorneys’ fees. The lawsuit was consolidated with a case brought by the ACLU of Arkansas. The conjoined cases (No. 4:18-cv-00342) are before Judge Kristine G. Baker of the U.S. District Court for the Eastern District of Arkansas. Attorney Gerry Schulze is representing the plaintiffs along with FFRF Senior Counsel Patrick Elliott, and AHA attorneys Monica Miller and David Niose.
FFRF filed a civil rights lawsuit against Mercer County Schools on January 18, 2017, over the school system's egregiously unconstitutional "Bible in the Schools" classes for elementary school students. Joining FFRF as primary plaintiffs in the case are Jane Doe, an atheist and member of FFRF, and her child, Jamie Doe. Elizabeth Deal and her daughter, Jessica Roe, joined the case on March 28, 2017.
The bible instruction, taught by itinerant teachers who possess "a degree in Bible," began in first grade. Classes were held in 15 elementary schools, one intermediate school and three middle schools. The classes met weekly and lasted 30 minutes in elementary schools and 45 minutes in middle schools. The curriculum was equivalent to Sunday school instruction.
Due to the lawsuit, the school system suspended the Bible in the Schools classes for the 2017-18 school year.
On Nov. 14, 2017, Judge David Faber dismissed the case on jurisdictional grounds, finding that one family did not have standing and that the case was not yet “ripe” for review. Elizabeth Deal and Jessica Roe filed an appeal to the Fourth Circuit Court of Appeals (Case No. 17-2429).
On Dec. 17, 2018, the Fourth Circuit unanimously ruled in favor of Elizabeth Deal and her daughter, reversing the district court. The court held that the plaintiffs could pursue an injunction against the bible classes and remanded the case for further proceedings.
The U.S. Supreme Court denied Mercer County's petition to hear the case on Oct. 7, 2019, which finalizes the Fourth Circuit’s decision. The case is now proceeding before Judge Faber in the Southern District of West Virginia.
FFRF won a court victory before the 6th U.S. Circuit Court of Appeals ending similar bible instruction in Rhea County (Dayton), Tenn., schools in 2004.
Marc Schneider is serving as primary litigating attorney and FFRF Senior Counsel Patrick Elliott is co-counsel.