In
Freedom From Religion Foundation v. Weber, (9th Cir., Aug. 31, 2015), the U.S. 9th Circuit Court of Appeals in a fragmented decision upheld the
district court's rejection of a challenge to the Jesus statue on Montana's Big Mountain. Judge Owens' opinion concluded that the Forest Service's renewal of the special use permit allowing the statue to remain on federal land did not violate the Establishment Clause. The decision to renew reflected primarily a secular purpose and did not constitute an endorsement of religion. Judge Owens said in part:
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.
