San Francisco, CA – In late August, a three-Justice panel of the 9th Circuit Court of Appeals ruled that a statue of Jesus on National Forest Land at Whitefish Mountain Resort can stay.
The Wisconsin-based Freedom From Religion Foundation (FFRF) had filed the lawsuit against the U.S. Forest Service, Flathead National Forest Supervisor Chip Weber, and the Knights of Columbus, a Catholic organization that had erected the monument in 1954 as a tribute to U.S. soldiers who died in World War II, demanding that the statue alongside the ski slopes of Whitefish Mountain be removed. The U.S. Forest Service had first planned to remove the statue in 2011 after receiving a complaint from the FFRF, but reversed course after examining the statue’s historical significance.
After the U.S. District Court in Montana sided with the defendants and dismissed the lawsuit, finding that the presence of the statue on national forest land did not violate the U.S. Constitution’s Establishment Clause separating church and state, the Freedom From Religion Foundation appealed to the 9th Circuit.
In a decision filed on August 31, the appeals court affirmed the trial court’s decision by a decision of 2-1.
“The government identified secular rationales for its continued authorization (of the statue’s permit) including the statue’s cultural and historical significance for veterans, Montanans, and tourists; the statue’s inclusion in the National Register of Historic Places; and the government’s intent to preserve the site ‘as a historic part of the resort,’” Justice John B. Owens wrote for the majority.
The National Forest Service first issued a special use permit authorizing the statute in 1953. It was reissued in 1990, 2000 and 2012.
“The Forest Service’s renewal of a special use permit for an existing monument does not constitute government speech,” added concurring Justice N. Randy Smith. “When a private speaker utilizes public property as a forum for expression, government allowance of that expression does not violate the Establishment Clause as long as the expression is permitted in a ‘non-discriminatory manner.’…The Knights’ decision to place a statue of Jesus at the Big Mountain Ski Resort was purely private expression.”
Justice Harry Pregerson, appointed to the Ninth Circuit in 1979 by President Jimmy Carter, cast the lone dissenting vote.
“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,'” Justice Pregerson wrote in his dissent. “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.