Written by Don Byrd
A statute of Jesus on the Big Mountain ski slope in Montana, publicly owned land controlled by the National Forest Service, does not violate the constitutional separation of church and state, according to a ruling yesterday by the 9th Circuit Court of Appeals. By a 2-1 vote, the Court held that the statute does not imply a government endorsement of religion.
From the opinion:
Our determination is based on the following: (1) there is nothing in the statue’s display or setting to suggest government endorsement; the twelve-foot tall statue is on a mountain, far from any government seat or building, near a commercial ski resort, and accessible only to individuals who pay to use the ski lift; (2) the statue’s plaque communicates that it is privately owned and maintained—“it did not sprout from the minds of [government] officials and was not funded from [the government’s] coffers,” (3) besides the statue’s likeness, there is nothing in the display or setting to suggest a religious message.
The Court also emphasized the “flippant” actions of tourists and locals, which treat the statue as more of a landmark and decoration that “suggests secular perceptions.”
The dissent countered that, despite the perceptions of some, Jesus is in fact a religious figure.
First, despite arguments to the contrary, a twelve-foot tall statue of Jesus situated on government-leased land cannot realistically be looked upon as “predominantly secular in nature.” Second, to determine the effect of the statue we ask whether “it would be objectively reasonable for the government action to be construed as sending primarily a message of either endorsement or disapproval of religion.” I submit that a “reasonable observer would perceive” the statue situated on government land “as projecting a message of religious endorsement.”
The Freedom From Religion Foundation, which filed the lawsuit, has announced its intention to seek review from the entire 9th Circuit (en banc).
For more, see the opinion in the case, Freedom From Religion Foundation v. Weber. Law professor Eugene Volokh analyzes the decision for the Washington Post here.
