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.\u00a0 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\u2019s chairlifts for nearly sixty years.<\/p>\n
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.\u00a0 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. \u00a0Since the statue was installed in 1955, the statue has become a local landmark.\u00a0 Skiers frequently stop to take pictures in front of it, and often decorate it with leis, Mardi Gras beads, ski helmets, and Hawaiian shirts.<\/p>\n
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.\u00a0 In August, the Forest Service announced that it would not renew the permit.\u00a0 The Forest Service\u2019s decision provoked enormous outcry.\u00a0 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.\u00a0 Local residents created a \u201cSave Big Mountain Jesus Statue\u201d Facebook page, which received over 3,800 visitors and 3,000 comments in the first week.\u00a0 Supporters of the statue held an \u201cOccupy Big Mountain\u201d rally.\u00a0 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.<\/p>\n
After learning that the statue was eligible for inclusion on the National Register of Historic Places and seeing the public\u2019s 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.\u00a0 Shortly thereafter, the Freedom From Religion Foundation filed<\/a> suit in a federal district court in Montana, contending that the religious figure is an unconstitutional government endorsement of religion.<\/p>\n Public displays of religion are ubiquitous.\u00a0 All U.S. currency contains the national motto, \u201cIn God We Trust.\u201d\u00a0 The Pledge of Allegiance contains the words \u201cunder God.\u201d\u00a0 Congress opens each session with a prayer, and the Supreme Court begins each day with the phrase \u201cGod save the United States and this Honorable Court.\u201d\u00a0 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.\u00a0 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.<\/p>\n The United States Supreme Court has considered the permissibility of public displays of religious symbols in a variety of contexts. \u00a0It most recently addressed the issue on June 27, 2005, when it handed down two seemingly inconsistent opinions.\u00a0 In McCreary County v. American Civil Liberties Union<\/a><\/span>, the Court required the removal of a Ten Commandments display inside two Kentucky county courthouses.\u00a0 In Van Orden v. Perry<\/a><\/span>, the Court found no problem with a six-foot-high monument of the Ten Commandments on the Texas State Capitol grounds. \u00a0In each case, Justices Rehnquist, Scalia, Kennedy, and Thomas voted in favor of the displays, while Justices Stevens, O\u2019Connor, Souter, and Ginsburg voted to strike them down.\u00a0 Justice Breyer provided the swing vote.<\/p>\n The contrasting results reached in McCreary County<\/span> and Van Orden<\/span> have left much confusion as to the constitutionality of public displays of religious symbols.\u00a0 However, in his concurrence, Justice Breyer distinguished the two cases on four factual grounds.\u00a0 Because the facts of the Freedom From Religion Foundation\u2019s lawsuit in Montana more closely resemble those from McCreary County<\/span> than Van Orden<\/span>, the district court should order the removal of the Jesus statue from Big Mountain.<\/p>\n First, the Ten Commandments displays in McCreary County<\/span> and Van Orden<\/span> appeared in very different contexts.\u00a0 In McCreary County<\/span>, the Ten Commandments were initially hung in the courthouses in isolation. \u00a0Only after the ACLU filed a lawsuit were the displays placed among other documents.\u00a0 In contrast, the Ten Commandments in Van Orden<\/span> were surrounded from the beginning by 17 monuments and 21 historical markers.\u00a0 Like in McCreary County<\/span>, the Jesus statue stands alone on Big Mountain.<\/p>\n Second, the displays in McCreary County<\/span> and Van Orden<\/span> had very different histories.\u00a0 In McCreary County<\/span>, at a ceremony to commemorate the installation of the Ten Commandments, a pastor \u201ctestified to the certainty of the existence of God.\u201d\u00a0 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. \u00a0Following 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.\u00a0 The Supreme Court held that the historical evolution of the exhibits demonstrated that their predominant purpose was to advance religion.\u00a0 In Van Orden<\/span>, the Ten Commandments and the surrounding memorials were placed on the grounds of the state capitol with the express purpose of commemorating the \u201cpeople, ideals, and events that compose Texan identity.\u201d\u00a0 The initial permit application for the Big Mountain Jesus statue proposed to \u201cerect a statue of Our Lord Jesus Christ.\u201d\u00a0 A newspaper article published shortly before the statue was installed refers to it as a \u201cshrine.\u201d\u00a0 Consequently, the erection of the statue had a clear religious purpose.<\/p>\n Third, in McCreary County<\/span> and Van Orden<\/span>, the impetus for installing the Ten Commandments came from different sources.\u00a0 In McCreary County<\/span>, the displays were installed entirely at the behest of the county legislatures.\u00a0 In Van Orden<\/span>, the Fraternal Order of the Eagles donated the display in an effort to popularize the movie The Ten Commandments<\/span>.\u00a0 While the statue on Big Mountain was also put up by a private organization, the two organizations are very different.\u00a0 Justice Breyer emphasized that that the Fraternal Order of the Eagles was \u201cprimarily secular.\u201d\u00a0 Membership in the Knights of Columbus, by contrast, is limited to practicing male Catholics who \u201caccept 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.\u201d<\/p>\n Finally, the Ten Commandments display had gone unchallenged for a much longer period of time in Van Orden<\/span> than in McCreary County<\/span>.\u00a0 In McCreary County<\/span>, the display had been up for less than six months when the ACLU challenged its constitutionality in court.\u00a0 In Van Orden<\/span>, forty years had passed before any legal objection to the display was raised.\u00a0 In this respect, the Jesus statue more closely resembles Van Orden<\/span>, since it went unchallenged for nearly sixty years.\u00a0 However, an impermissible public display cannot become permissible merely by virtue of its age. \u00a0As Justice Stevens noted in his dissent, \u201cI doubt that a slow walk to the courthouse, even one that took 40 years, is much evidentiary help in applying the Establishment Clause.<\/p>\n 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.\u00a0 As Justice Jackson famously declared, \u201cfundamental rights may not be submitted to vote; they depend on the outcome of no elections.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":" Each year, over 50,000 skiers and snowboarders visit the ski slopes at Big Mountain in northwest Montana, just 66 miles 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