Each year, over 50,000 skiers and snowboarders visit the ski slopes at Big Mountain in northwest Montana, just 66 miles from the Canadian border.  This year, the mountain has set the stage for a battle between atheists and religious groups over the fate of a six-foot statue of Jesus that has stood on federal land at the top of one of the mountain’s chairlifts for nearly sixty years.

In 1953, a local chapter of the Knights of Columbus sought and obtained a special use permit from the U.S. Forest Service to lease a 25-by-25 foot area of land in the Flathead National Forest in order to install a painted stone statue of Jesus Christ.  Some of the members of the Knights of Columbus had served in World War II in the Army’s 10th Mountain Division and had been inspired by the religious shrines they encountered in the mountains in northern Italy.  Since the statue was installed in 1955, the statue has become a local landmark.  Skiers frequently stop to take pictures in front of it, and often decorate it with leis, Mardi Gras beads, ski helmets, and Hawaiian shirts.

Last May, the Freedom From Religion Foundation, a national atheist organization, discovered that the lease permit was about to expire, and put pressure on the Forest Service not to renew it.  In August, the Forest Service announced that it would not renew the permit.  The Forest Service’s decision provoked enormous outcry.  Over the next month, Flathead National Forest officials received over 95,000 comments from people across the country about whether the statue should be removed, including a letter advocating for renewal of the permit with more than 70,000 names attached.  Local residents created a “Save Big Mountain Jesus Statue” Facebook page, which received over 3,800 visitors and 3,000 comments in the first week.  Supporters of the statue held an “Occupy Big Mountain” rally.  United States Representative Denny Rehberg, a Montana Republican, even got involved. Among other things, he proposed federal legislation brokering a land swap, whereby possession of the land upon which the statue stands would be given to the Whitefish Mountain Resort in exchange for an equal amount of land being given to the Forest Service, and scheduled a hearing to discuss the bill.

After learning that the statue was eligible for inclusion on the National Register of Historic Places and seeing the public’s overwhelming show of support for the statue, on January 31, 2012 the Forest Service reversed its initial decision and decided to grant renewal of the permit for another ten years.  Shortly thereafter, the Freedom From Religion Foundation filed suit in a federal district court in Montana, contending that the religious figure is an unconstitutional government endorsement of religion.

Public displays of religion are ubiquitous.  All U.S. currency contains the national motto, “In God We Trust.”  The Pledge of Allegiance contains the words “under God.”  Congress opens each session with a prayer, and the Supreme Court begins each day with the phrase “God save the United States and this Honorable Court.”  Displays of religious symbols on public property, such as holiday displays and displays of the Ten Commandments, have led to a myriad of lawsuits alleging Establishment Clause violations.  Last month, for instance, Utah agreed to remove eleven Roman crosses that the Utah Highway Patrol Association had placed along state highways to honor Utah troopers killed in the line of duty, after the 10th Circuit Court of Appeals ruled that the crosses represented a state endorsement of religion.

The United States Supreme Court has considered the permissibility of public displays of religious symbols in a variety of contexts.  It most recently addressed the issue on June 27, 2005, when it handed down two seemingly inconsistent opinions.  In McCreary County v. American Civil Liberties Union, the Court required the removal of a Ten Commandments display inside two Kentucky county courthouses.  In Van Orden v. Perry, the Court found no problem with a six-foot-high monument of the Ten Commandments on the Texas State Capitol grounds.  In each case, Justices Rehnquist, Scalia, Kennedy, and Thomas voted in favor of the displays, while Justices Stevens, O’Connor, Souter, and Ginsburg voted to strike them down.  Justice Breyer provided the swing vote.

The contrasting results reached in McCreary County and Van Orden have left much confusion as to the constitutionality of public displays of religious symbols.  However, in his concurrence, Justice Breyer distinguished the two cases on four factual grounds.  Because the facts of the Freedom From Religion Foundation’s lawsuit in Montana more closely resemble those from McCreary County than Van Orden, the district court should order the removal of the Jesus statue from Big Mountain.

First, the Ten Commandments displays in McCreary County and Van Orden appeared in very different contexts.  In McCreary County, the Ten Commandments were initially hung in the courthouses in isolation.  Only after the ACLU filed a lawsuit were the displays placed among other documents.  In contrast, the Ten Commandments in Van Orden were surrounded from the beginning by 17 monuments and 21 historical markers.  Like in McCreary County, the Jesus statue stands alone on Big Mountain.

Second, the displays in McCreary County and Van Orden had very different histories.  In McCreary County, at a ceremony to commemorate the installation of the Ten Commandments, a pastor “testified to the certainty of the existence of God.”  Less than a month after the ACLU filed a lawsuit, the courts, at the direction of the county legislatures, surrounded the Ten Commandments with eight other documents whose only commonality was that they all contained religious references.  Following a court order to remove the displays pending resolution of the controversy, the courthouses put up a third display, this time surrounding the Ten Commandments with historical documents of legal significance.  The Supreme Court held that the historical evolution of the exhibits demonstrated that their predominant purpose was to advance religion.  In Van Orden, the Ten Commandments and the surrounding memorials were placed on the grounds of the state capitol with the express purpose of commemorating the “people, ideals, and events that compose Texan identity.”  The initial permit application for the Big Mountain Jesus statue proposed to “erect a statue of Our Lord Jesus Christ.”  A newspaper article published shortly before the statue was installed refers to it as a “shrine.”  Consequently, the erection of the statue had a clear religious purpose.

Third, in McCreary County and Van Orden, the impetus for installing the Ten Commandments came from different sources.  In McCreary County, the displays were installed entirely at the behest of the county legislatures.  In Van Orden, the Fraternal Order of the Eagles donated the display in an effort to popularize the movie The Ten Commandments.  While the statue on Big Mountain was also put up by a private organization, the two organizations are very different.  Justice Breyer emphasized that that the Fraternal Order of the Eagles was “primarily secular.”  Membership in the Knights of Columbus, by contrast, is limited to practicing male Catholics who “accept the teaching authority of the Catholic Church on matters of faith and morals, aspire to live in accord with the precepts of the Catholic Church, and are in good standing in the Catholic Church.”

Finally, the Ten Commandments display had gone unchallenged for a much longer period of time in Van Orden than in McCreary County.  In McCreary County, the display had been up for less than six months when the ACLU challenged its constitutionality in court.  In Van Orden, forty years had passed before any legal objection to the display was raised.  In this respect, the Jesus statue more closely resembles Van Orden, since it went unchallenged for nearly sixty years.  However, an impermissible public display cannot become permissible merely by virtue of its age.  As Justice Stevens noted in his dissent, “I doubt that a slow walk to the courthouse, even one that took 40 years, is much evidentiary help in applying the Establishment Clause.

Consequently, under the test articulated by Justice Breyer, the federal district court should find that the Big Mountain Jesus Statue violates the Establishment Clause, despite its popularity.  As Justice Jackson famously declared, “fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

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2 Comments

  1. Noah Kaplan says:

    Greg, this is a really interesting case and you provide great analysis of the parallels between the previous cases and the current one. Two questions come to mind that I would love to hear your response to.

    First, how is the replacement of Justice O’Connor with Justice Alito going to affect this doctrine going forward? Is the Freedom from Religion Foundation making a strategic error in setting up a case that will likely weaken the Establishment Clause even further?

    Second, on the facts of this case, it seems like there is a reasonable argument that the Jesus statue was originally more like the Ten Commandments display in McCreary County, but has over time become more like the statue in Van Orden. Clearly it was originally placed there with a predominantly religious purpose to emulate the religious icons prevalent in Italy. Now though, it seems like the statue is more a secular landmark, attested to I think by the fact that people dress it up and take photos with it. Doesn’t the irreverence with which the statue is treated by visitors to the mountain demonstrate that it is no longer viewed as a predominantly religious symbol? I think there is precedent for the argument that a religious symbol (like “In God we trust”) can actually become secular over time.

    • Noah,

      These are great questions. To answer them, I need to give a little background of Establishment Clause jurisprudence. As you may know, the justices on the Supreme Court subscribe to three vastly different theories about how the Establishment Clause should be interpreted. The strict separation theory holds that government and religion should be kept separate as much as possible. Those who subscribe to this theory apply the three-prong test pronounced in Lemon v. Kurtzman: (1) “the statute must have a secular legislative purpose;” (2) “its principal or primary effect must be one that neither advances nor inhibits religion;” and (3) “the statute must not foster ‘an excessive government entanglement with religion.’” The neutrality theory believes that the government must neither favor one religion over another nor favor religion over secularism. Justice O’Connor, who is most closely associated with this theory, promulgated the symbolic endorsement test in her concurring opinion in Lynch v. Donnelly, which states that a government action violates the Establishment Clause if a reasonable observer would perceive the action to symbolically endorse a particular religion. Finally, the accommodation theory seeks to make room for religion’s presence in government. Accommodationist judges apply the coercion test, which holds that the government action violates the First Amendment only it coerces religious participation.

      At the time that McCreary County and Van Orden were decided, there were three justices who subscribed to the strict separation theory (Justices Breyer, Ginsburg, and Stevens), one justice who subscribed to the neutrality theory (Justice O’Connor), and four justices who subscribed to the accommodation theory (Justices Rehnquist, Kennedy, Scalia, and Thomas). Chief Justice Rehnquist was replaced on the Court by Chief Justice Roberts, another proponent of the accommodation theory. Justice O’Connor was succeeded by Justice Alito, an accommodationist. Consequently, there are now five votes for the accommodation theory.

      Under the accommodation theory, the Big Mountain Jesus statue is clearly permissible, since it does not coerce religious participation. However, unless and until the Supreme Court has the opportunity to revisit the issue, McCreary County and Van Orden are the law. Since the lower courts are obligated to abide by the Supreme Court’s precedents, I believe that the district court is obligated to strike down the Jesus statue. You may be right that the Freedom From Religion Foundation is committing a tactical error in giving the Supreme Court the opportunity to declare that the accommodation theory is the law of the land. However, the Supreme Court recently declined the opportunity to address the issue by denying cert. in the Utah Highway Patrol Association case that I mentioned in my article. Therefore, it is far from certain that they would grant certiorari in this case, if it got the opportunity to do so.

      With regard to your second question, whether or not it would matter that the statue may have become secular over time would depend on the theory of the Establishment Clause to which you subscribe. For a strict separationist, I believe the statue would be unconstitutional even if it had taken on a secular meaning. Applying the Lemon test, the new meaning might affect the second prong (whether the statue’s primary purpose is to advance or inhibit religion), but it would have no bearing on the first prong (whether the statue had a secular purpose at the time it was installed). Nor would the new meaning change the analysis for a proponent of accommodation. Regardless of the statue’s meaning as a religious or secular object, the statue in no way coerces religious participation and is therefore constitutional. The secular meaning of the statue would only be determinative for proponents of neutrality. If you are right that the statue has become a “secular landmark,” then a reasonable observer would not perceive it to symbolically endorse Christianity. However, I would question your assumption that a Jesus statue can lose its religious meaning and instead taking on a secular one. Unlike the Ten Commandments, which arguably played a historic role in shaping the American legal system, Jesus Christ is an overtly religious figure who represents the founding of a new religion.

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