A lawyer for the state of Wyoming urged a federal judge on Monday to deny an anti-abortion group's request to require the state to allow it to display materials near the state Capitol.


The group, WyWatch Family Action, filed a lawsuit this month claiming the State Building Commission discriminated against it by ordering removal of anti-abortion materials from a tunnel leading to the Capitol during last year's legislative session.

The group has asked U.S. District Judge Nancy Freudenthal to order the state to allow WyWatch to display its materials in the tunnel, between the Capitol and the adjoining Herschler Building, during the legislative session that starts next month and in future sessions. The judge said at the end of the hearing that she will issue a written order on the group's request soon.

Martin Hardsocg, deputy Wyoming attorney general, told Freudenthal that WyWatch hasn't applied for a permit to display its materials in the tunnel in the coming legislative session. The new policy banning all groups from displaying the tunnel area makes the group's lawsuit pointless, he said.

Hardsocg said the tunnel was never intended to serve as a designated public forum. Another anti-abortion group held a demonstration in the tunnel after WyWatch was removed that drew so many people it clogged the tunnel, he said.

The State Building Commission, which includes Gov. Matt Mead and the other four statewide elected officials, changed state policy this month to ban all displays in the tunnel in part because the commission wanted to avoid being sued and challenged by groups such as WyWatch, Hardsocg said.

With the new policy banning all displays, the commission believes WyWatch can't show that it has suffered irreparable harm and can't show that it is being treated differently than other groups, he said.

Lawyer Jonathan Scruggs, who represents WyWatch, told Freudenthal there's no guarantee the state will keep its new policy in place without a court order controlling its behavior.

Scruggs is with the Alliance Defense Fund, an Arizona-based Christian civil rights group that has litigated against same-sex marriage in California. The group also has supported the recent, unsuccessful push in Wyoming to change state law to specify that the state shouldn't recognize same-sex marriages performed elsewhere.

Scruggs told Freudenthal that the commission action adopting the new rule the week after the group filed its lawsuit "shows that the defendants are not interested in constitutional compliance — they're interested in avoiding judicial sanction." The state never responded to the group's letter last year threatening legal action, he said.

Rich Cathcart, head of the Wyoming State Building Commission, filed a statement in court saying that WyWatch had erected two 8-foot-long poster boards in the tunnel last year, one featuring a picture of an unborn fetus and the other a group of women saying that they regretted getting abortions.

"We believe that if you look at the picture, it's not offensive at all," Scruggs said of the group's picture of a fetus. "It's an unborn child, it's not an aborted child."

Freudenthal said she would accept a court brief in support of WyWatch's position filed by the American Civil Liberties Union.

"While the ACLU doesn't agree with WyWatch's anti-choice message, we firmly support their right to say it," said Jennifer Horvath, lawyer with the Wyoming ACLU. "Sometimes the most effective message is one that gets our attention. The government cannot suppress the right to free speech, even on government property, just because someone doesn't like what the organization has to say or how they say it."