besides the statue’s likeness, there is nothing in the display or setting to suggest a religious message.... 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....Judge Smith, concurring, said in part:
Given the assumption made by both the majority and the dissent—that the Forest Service’s action (the renewal of a special use permit) constituted government action that could violate the Establishment Clause—I agree with the majority..... However, I write separately, because the assumption is incorrect. The Forest Service’s renewal of a special use permit for an existing monument does not constitute government speech.Judge Pregerson dissenting said in part:
First, 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.”... Second ... I submit that a “reasonable observer would perceive” the statue situated on government land “as projecting a message of religious endorsement.”The Helena Independent Record reports on the decision.