The 9th U.S. Circuit Court of Appeals heard oral arguments Tuesday in a lawsuit that will determine whether a statue of Jesus should stay on federal lands leased to Whitefish Mountain Resort.
In June 2013, U.S. District Judge Dana Christensen dismissed the lawsuit filed by the Wisconsin-based Freedom From Religion Foundation, which objected to the 6-foot-tall statue of Jesus on Big Mountain. The organization later appealed his decision.
Christensen said the Flathead National Forest permit allowing the placement of the statue does not represent government endorsement of religion. The statue was installed in 1954 by the Knights of Columbus to honor World War II veterans and members of the U.S. Army’s 10th Mountain Division, and it stands on land leased to a private organization.
“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.”
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.
Representing the Freedom From Religion Foundation in court in Portland, Oregon, on Tuesday, Richard Bolton said one of the group’s members, Pamela Morris, has been a lifelong recreational skier in Montana who now avoids the mountain because of the statue.
Judge N. Randy Smith questioned the organization’s standing in bringing the lawsuit, saying that the statue is off the resort's main runs and it's possible to ski the mountain and never see it.
“She can ski Big Mountain and have the best experience of her life, even as good as Idaho, and never see it,” he said. “She has to go specifically looking for it.”
Besides the question of standing, Bolton said the court should apply the “Lemon test,” which stems from a 1971 decision and provides for a three-pronged examination of government as it relates to religion. It holds that the action of the government 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.
“The question is whether or not there’s a perception of religious endorsement,” Bolton said.
Smith asked Bolton to explain why the case did not constitute “private speech on public land” as the statue is marked as having been put up by the Knights of Columbus and is not owned by the government.
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“With monuments, there is a significant inference of government endorsement,” Bolton said.
He also questioned how the the government went about granting a new permit for the statue in 2011, calling the process a “sham.”
Attorney Joan Pepin, representing the U.S. Forest Service, said the privately owned statue did not constitute an establishment of religion by the government. She said an assessment of the statue found that it has local historical significance beyond religious connotation.
“It’s just a beloved, local, quirky monument,” she said.
Pepin said no evidence of discrimination in favor of a religious group has been shown in granting or reissuing permits for the statue. There are also no government buildings or signs near the statue giving the appearance that its message is condoned by the Forest Service. The statue also has no place for worship at or near the site, she said.
“It’s usually wearing a ski helmet,” Pepin said.
Eric Baxter, representing the Becket Fund for Religious Liberty, argued the case on behalf of the Knights of Columbus and four Kalispell residents. He reminded the judges that the only way to see the statue is to enter the private resort, purchase a lift ticket, choose a particular run and go off that run to find it past a stand of trees.
“There’s no particular reason to stop there unless you want to look at the statue,” he said.
If the Freedom From Religion Foundation’s lawsuit is successful, he argued, it would in fact constitute a violation of freedom of speech.
“The Knights’ speech is private speech and to target the Knights themselves because of the nature of that speech would be discrimination in violation of the Constitution,” Baxter said.