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.
But FFRF President Annie Laurie Gaylor said Christensen relied on the recollection of one person to establish the motivation behind the statue and dismissed the fact that the plaque honoring veterans wasn't erected until 2010, after some people complained.
"The judge’s ruling is tortured because basically he is saying a ski slope is now a museum. That a religious shrine doesn’t have a religious purpose," Gaylor said. "He says it's OK to violate the Constitution by having the government permit a Jesus shrine on public property because it's been up for so long. You can’t justify something that's wrong because it’s a tradition."
Gaylor said she didn't expect that type of ruling coming from an Obama appointee like Christensen. FFRF has not decided whether to appeal.
Christensen applied past Supreme Court and appellate court rulings involving crosses and monuments of the Ten Commandments on public lands and spaces in reaching his decision. Those cases and others have come up with standards such as the Lemon Test or the so-called Reindeer Rule to decide whether religious symbols like crosses and creches have a secular purpose or constitute government endorsement of religion.
In applying those standards and other analyses, justices have found that Ten Commandments displays in schools and courts are unconstitutional, but that those erected on grounds surrounding state and local government buildings comply with the First Amendment.
The high court ruled 5-4 in 2010 that a veterans memorial cross in California's Mohave Desert didn't violate the Constitution, overturning the 9th Circuit Court of Appeals, which ruled a year later that another memorial cross on Mount Soledad near San Diego violated the First Amendment's Establishment Clause.
Rassbach said nonverbal speech, such as monuments or memorial crosses, does complicate the issue because their interpretation can change over time and mean different things to different people.
He said some clarity on the issue could come if the Supreme Court takes another Becket Fund case involving a high school graduation ceremony that has been held for the past decade in a Christian church. The Elmbrook Schools system in Wisconsin has appealed a 7th Circuit Court ruling that renting the church was unconstitutional because of the pervasive religious environment of the church auditorium where the ceremonies are held.
But a decision on whether to take up that appeal likely won't be made, Rassbach said, until the justices decide a case involving prayers held before council meetings in the town of Greece, N.Y. The 2nd Circuit Court of Appeals has ruled the prayers violate the Establishment Clause because they are primarily Christian. The town appealed, arguing its system of allowing citizens to volunteer to pray doesn't discriminate on who prays.
The high court decided in 1983 that legislative prayers are constitutional unless the prayers are used “to proselytize or advance any one, or to disparage any other, faith or belief.” But some legal scholars say that rationale caused more confusion than clarity on who can pray and what can be said.
Rassbach said that lawyers and judges hope the Greece decision, which could come before the end of the year, will be an opportunity for the court to provide better guidance for future establishment law cases involving verbal and nonverbal speech.
"Even the justices have said the Establishment Clause jurisprudence is a mess and they need to fix it," he said. "Some of us think the Greece decision will be the one where they start doing that."
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