Ruling on Jesus statue is latest in conflicting Establishment Clause decisions

Published: Friday, June 28 2013 9:50 a.m. MDT

In this Feb. 20, 2011, file photo, the statue of Jesus Christ at Whitefish Mountain Resort overlooks Whitefish Lake and the Flathead Valley in Whitefish, Mont. A Montana judge says the statue that was placed on federal land on Big Mountain near Whitefish nearly 60 years ago can remain.


For almost 60 years, a 6-foot statue of Jesus has stood atop a hill at Whitefish Mountain Resort in western Montana.

Erected by the Catholic Church's Knights of Columbus, the statue has become a landmark known as "Big Mountain Jesus" to skiers and boarders, who have decorated it with Mardi Gras beads and goggles or slapped a high-five on its outstretched hands as they cruised by. But to some skiers and hikers, the painted figure is a religious symbol that shouldn't be on public land, and so the Freedom From Religion Foundation sued on their behalf when the Forest Service re-issued a permit to the Knights for use of the 25-foot by 25-foot parcel where Big Mountain Jesus stands.

Federal judge Dana Christensen dismissed the lawsuit this week, ruling that "not every religious symbol runs afoul of the Establishment Clause of the United States Constitution.

"To some, Big Mountain Jesus is offensive, and to others it represents only a religious symbol, but the court suspects that for most who happen to encounter Big Mountain Jesus, it neither offends nor inspires."

The ruling conforms with some federal court decisions and conflicts with others on what is becoming a murky issue in constitutional law: when does verbal or nonverbal religious expression in public places violate the First Amendment's Establishment Clause, which prohibits the government from “respecting an establishment of religion”?

But lawyers on both sides of the issue are holding out hope the jurisprudential mess will get cleaned up. They pin those hopes on a case before the Supreme Court involving prayers before City Council meetings in a small town in western New York. "That could be the opportunity for the court to revisit the establishment clause and come up with some better tests and better explications of the law that will apply to any establishment clause challenge, including this Montana case," said Eric Rassbach, deputy general counsel for the Becket Fund for Religious Liberty, which defended the monument in court.

Big Mountain ruling

Rassbach and the Knights are pleased with Christensen's ruling and believe his reasoning is the kind the high court should eventually embrace.

He called it a "common-sense decision (that) honors our veterans, preserves our nation’s history, and rejects the idea that all religious symbols must be banished from public property.”

According to the ruling, the statue was the idea of the Knights of Columbus, who wanted to erect a shrine overlooking Big Mountain ski run that would also honor World War II veterans of the Army's 10th Mountain Division. One of those veterans, who developed the original Big Mountain Ski Resort, recalled seeing statues of Christ in the Italian Alps and wanted one on Big Mountain in memory of the veterans who lost their lives in the war.

Over the years, however, the meaning of the statue likely became lost on those who raced by it or stopped for a photo, Christensen concluded.

"To the extent Big Mountain Jesus may have had some religious significance at the time of its construction by the Knights of Columbus, and may have provided from time to time spiritual inspiration or offense to some, over the course of the last 60 years the statue has become more of an historical landmark and a curiosity," he wrote.

While the statue stands on government property, Christensen stated, the statue is private speech that doesn't convey government promotion of religion.

"In summary, the court finds that the (Forest Service) renewed the Special Use Permit because the statue is steeped in the origins and history of Big Mountain and the surrounding community, which constitutes a legitimate secular purpose," he ruled.

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