WHITEFISH – Big Mountain Jesus isn’t going anywhere. Not right now, anyway.
U.S. District Judge Dana Christensen on Tuesday dismissed a lawsuit filed by the Wisconsin-based Freedom From Religion Foundation objecting to a 6-foot-tall statue of Jesus located on federal land leased to Whitefish Mountain Resort at Big Mountain.
Christensen ruled the statue does not violate church-state separation. The Flathead National Forest, he said, can reissue a 10-year permit for the nearly 60-year-old statue that was installed on the ski hill in the 1950s by the Knights of Columbus, a Catholic men’s organization.
The statue honors World War II veterans and members of the U.S. Army’s 10th Mountain Division.
By permitting the statue, Christensen said, the U.S. Forest Service is not reflecting government endorsement of a religious sect, or a preference for religion over non-religion.
“The government neither owns the statue nor exercises control over the property on which it is located,” Christensen wrote. “Big Mountain Jesus constitutes private speech reflecting the personal views of its private owners and therefore cannot be seen by the reasonable observer as reflecting government promotion of religion.”
Attorneys for the Becket Fund for Religious Liberty, who successfully argued on behalf of the Knights of Columbus and four Kalispell residents who intervened in the Wisconsin group’s lawsuit against the U.S. Forest Service, hailed Christensen’s ruling as a “common-sense decision.”
But Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation, said she was “disappointed, even shocked” by the decision of the judge, a longtime Flathead Valley attorney who was appointed to the bench by President Barack Obama in 2011.
Christensen, she charged, had “distorted” what’s known as the Lemon test, based on a 1968 U.S. Supreme Court ruling that details how to determine whether a government action is unconstitutional under the Establishment Clause of the First Amendment.
“The judge said the statue has no religious purpose, but the Knights of Columbus said they put it up to erect a shrine,” Gaylor said. “He turns the First Amendment on its head to claim a Jesus statue is not religious.”
“I couldn’t be more disappointed in an Obama appointee,” Gaylor said. “He might as well be a Bush appointee.”
Eric Rassbach, deputy general counsel for the Becket Fund, a nonprofit Washington, D.C., law firm that says it is “dedicated to the protection of all religious traditions,” called the Lemon test “a controversial doctrine that the Supreme Court itself has not followed in a lot of cases.”
Named for one of the parties in the 1968 lawsuit, the Lemon test is three-pronged. It holds that the government’s action must have a secular legislative purpose, must not have the primary effect of advancing or inhibiting religion, and must not result in excessive government entanglement with religion.
“I believe Justice (Antonin) Scalia referred to it as ‘a zombie,’ ” Rassbach said of the test. “It seemed dead, but it keeps popping up. In any case, we disagree that Judge Christensen didn’t apply it the right way.”
Christensen wrote that “the permit does not reflect a religious purpose by USFS, its primary effect neither advances nor inhibits religion, and no excessive government entanglement exists by its reissuance.”
“Many of those who view Big Mountain Jesus are likely unaware of any governmental connection at all,” Christensen wrote.
The judge said the statue has become more of a historical landmark and curiosity over its nearly 60 years at the ski resort.
“Big Mountain Jesus has been the subject of much frivolity over the years,” Christensen wrote. “In addition to serving as a meeting place on the mountain for skiers and a site for weddings, it has not infrequently been observed adorned with ski poles, goggles, ski hats, mardi gras beads and other attire, all secular in nature. In fact, frequent repairs have been made to the outstretched hands of Big Mountain Jesus which have been dislodged by passing skiers who have given a ‘high five’ to the statue.”
For many, Christensen said, the statue is mostly “a historical reminder of those bygone days of sack lunches, ungroomed runs, rope tows, T-bars, leather ski boots and 210 cm. skis.”
Until the Freedom From Religion Foundation protested, the judge said, the statue’s presence at the ski resort had gone unchallenged for approximately 60 years.
“If you use that argument, that if the government violates the law for a long time, it’s OK, where would we be?” Gaylor said. “Slavery existed for 400 years, but that’s not an appropriate argument for keeping slavery. I would say that the longer it goes on, the worse it is.”
But the judge said the statue is not a violation.
“Unquestionably, Big Mountain Jesus is a religious symbol commonly associated with one form of religion,” he wrote. “But not every religious symbol runs afoul of the Establishment Clause of the United States Constitution.”
The statue’s tree-obscured location, the judge added, makes it possible to ski at the resort “day after day” without ever seeing it. “(C)ertainly, if one wished to ski at Big Mountain and entirely avoid the statue, it is readily possible to do so without any diminishment of the skiing experience,” Christensen said.
“We still don’t know if a tree falling in a forest makes a sound,” Rossbach said. “But we can be sure that a lonely Jesus statue standing in a Montana forest doesn’t create an official state religion for the United States.”
Rossbach said based on past history, he expects the Freedom From Religion Foundation to appeal Christensen’s ruling to the 9th U.S. Circuit Court of Appeals. Gaylor said she had not had a chance to discuss the foundation’s next move with its legal counsel, “but my feeling is it should be appealed.”