In Kelly v. Montana Department of Transportation, (D MT, March 23, 2021), a Montana federal district court adopted a magistrate's recommendations, 2021 U.S. Dist. LEXIS 55046 (D MT, March 9, 2021). The magistrate recommended dismissing 1st Amendment objections to the removal of a "spiritual cross" that plaintiff had erected along side of a highway in memory of his stepson. Rejecting free speech claims, the magistrate held that "a spiritual cross erected on public land adjacent to a highway constitutes government speech." Rejecting free exercise claims, the magistrate said in part:
Kelly does not allege that the Defendants prohibited him from freely exercising his religious beliefs though private speech. Kelly alleges that the Defendants removed a spiritual cross that he had erected on public land.... [T]he spiritual cross constituted government speech. Kelly has therefore failed to state a cognizable claim under the First Amendment's Free Exercise Clause.
