The US 9th Circuit has rejected the Freedom From Religion Foundation’s charge that a large statue of Jesus on Big Mountain in Montana violated the Constitution’s Establishment Clause. The statue was erected in the 1950s by the Knights of Columbus as a war memorial, under a Special Use Permit by the US Forest Service. (This was an appeal from a 2013 district court decision.)
The majority ruled that, other than the likeness, the statue did not have any religious message. Moreover, the public often decorates the statute with ski gear, beads, and gives it a “high-five” as they ski by, thus, in the words of the Judge, “suggest secular perceptions and uses.”
A concurring opinion holds a different reason: renewing the special use permit is not “government speech.”
The dissent stated that, regardless of how the public might treat the statue, it still projects a “message of religion endorsement.”
How courts view whether something the government does as”establishing” religion has changed over time. The goalpost has moved from freedom of religious express without endorsement or forcing others to partake, to whether any representation has anything religious about it.
While many Christians might celebrate this ruling as a win, I am not so sure. The current climate previses that the government might be able to allow a religious symbol or representation, but only if it has been secularized so that any rearl sense of religion has been removed. You can have your Jesus on government property, but only if he is the object of frivolity and not devotion.
A statue on a mountain, near a ski slope, is not the same thing as having the Ten Commandments posted in a government classroom, where non-Jews or non-Christians might perceive favorability of one religion over theirs.[1. See Stone v Graham (1980).] Many courts have turned a positive (“let’s allow for the free expression of all faiths”) into a negative (“we cannot have any expression of a specific faith”).[1. To be historically accurate, the Founding Fathers probably meant “all Christian faiths,” but in reading their writings, I do not think they would have had any problem extending that beyond Christianity—at least in theory.]
This is a difficult balancing act for a society as large and diverse as the United States. We know from history that we should be sensitive to religious (or other) tyranny. Neither side gains from religion being forced. By the same token, to wipe all public expressions of religion society is as short-sighted as trying to eradicate any history, thought, philosophy, literature, or art out of society. To me, the ideal is to allow the celebration (not endorsement) of all religions in public. Historically, the U.S. has celebrated the concept of a “melting-pot.” Our religion diversity is part of that, and should be celebrated (even in some government-attached things) while not endorsing any particular religion.
Read the original District Court’s decision here.
Read the Ninth Circuit decision here.
Here is a well-balanced and detailed article by Eugene Volokh in the Washington Post.