ESTABLISHMENT: Renewal of FS permit for Big Mountain Jesus on federal land leased to ski resort not violative of Establishment Clause… Christensen.
FS issued a permit in 1953 and a statue of Jesus was constructed by the Knights of Columbus the next year on federal land leased to Whitefish Mountain Resort. Freedom From Religion Foundation of Wisconsin challenges reissuance of the permit.
Unquestionably, Big Mountain Jesus is a religious symbol commonly associated with one form of religion. To some it is offensive, to others it represents only a religious symbol, but the Court suspects that for most it neither offends nor inspires. It appears that some degree of divine inspiration determined the location, as L.J. Reed was quoted in the Whitefish Pilot as stating: “Our Lord himself selected this site, as each member of the committee after looking over all other possibilities returned to this site and were in complete accord that this was it.” In addition to serving as a meeting place for skiers and a site for weddings, it has been observed adorned with ski poles, goggles, ski hats, mardi gras beads, and other secular attire. Frequent repairs have been made to its outstretched hands which have been dislodged by skiers and snowboarders giving it a “high five.” The original permit was issued for an unspecified term by FS. It was renewed in 1990 & 2000 for 10-year terms. FS denied renewal in 8/11, but withdrew the denial in 10/11 and solicited comment. It received some 95,000 comments, and in 1/12 reissued the permit for 10 years, stating that it “has been a long standing object in the community since 1953 and is important to the community for its historical heritage.” In 12/11 the Montana Historic Preservation Office concluded that it was eligible for the National Register of Historic Places. Plaintiff argues that the recent reissuance of the permit, after first being denied on 1st Amendment grounds, and involvement of the Historic Preservation Office, were the result of political pressure, largely due to then Rep. Rehberg, and thus the entire process is suspect. There is no question that political pressure was brought to bear, and undoubtedly many of the letters were the result of this, but none of this bears any significance to the legal analysis.
The discrete act of permitting the statue by FS does not reflect government endorsement of any religious sect or preference for religion over non-religion. The US neither owns the statue nor exercises control over the property on which it is located. 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. It does not convey any message that individuals visiting Big Mountain might be treated more favorably or less favorably depending on their religious beliefs or affiliation. FS renewed the permit because the statue is steeped in the origins and history of Big Mountain and surrounding community, which constitutes a legitimate secular purpose. Lemon (1971) and Van Orden (2005) support reissuance of the permit because leasing public land within a private ski resort to a private organization which maintains a statue of Jesus does not violate the Establishment Clause. It does not convey to a reasonable informed observer that the Government, rather than a private party, endorses Christianity over any other faith or absence of faith. Summary judgment for FS and KC.
Freedom From Religion Foundation v. FS and Intervenors Knights of Columbus (Kalispell Council), 40 MFR 416, 6/24/13.
Martin King & Reid Perkins (Worden Thane), Missoula, and Richard Bolton (Boardman & Clark), Madison, Wisc., for Plaintiff; David Glazer, Kenneth Rooney, and Marissa Piropato (DOJ); AUSA Mark Smith; Charles Harball, Kalispell, and Eric Baxter & Eric Rassbach (The Becket Fund for Religious Liberty), DC, for KC.
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