The Ninth Circuit has affirmed a lower court’s decision ruling that a twelve foot statute of Jesus near Montana’s Big Mountain does not violate the First Amendment’s Establishment Clause. The statue, known as “Big Mountain Jesus,” is located on national forest land that the government leases to a private commercial ski resort. Freedom From Religion Foundation, Inc. sued the United States Forest Service and the Knights of Columbus to challenge the government’s “continued authorization” of Big Mountain Jesus. The statute is maintained by the Knights and authorized by the Forest Service. The case, Freedom From Religion Foundation, Inc. v. Weber (9th Cir. 2015), saw three separate opinions from the three-judge panel.

The majority opinion, authored by Judge Owens, found that the Forest Service’s renewal of the special permit to allow the statue on government land did not violate the Establishment Clause because it served primarily a secular purpose and did not endorse religion. The secular purposes served by the continued authorization of the statue are its “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.’”

Further, authorizing the statue was not tantamount to endorsement of religion because:

The flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in mardi gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures … local residents commonly perceived the statue as a meeting place, local landmark, and important aspect of the mountain’s history as a ski area and tourist destination; and, … there is an absence of complaints throughout its sixty-year history.

Judge Smith concurred in the decision, but wrote separately because he did not believe renewal of the permit was government speech: “the allowance of private speech on public property does not necessarily turn the private speech into government speech.”

Judge Pregerson dissented: “[D]espite 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.’” He added that a reasonable observer would see the statue on government land “as projecting a message of religious endorsement.”

The statue received a coveted ZiPLeR Award in 2011: “You Want to Call Out His Name on Some of the Double Diamond Trails Award” – click here for a copy for the award issue.

*See Just Alright by the The Doobie Brothers.