Debate over ski resort Jesus statue hits federal appeals court

Does the presence of a Jesus statue wearing a skiing helmet violate the First Amendment if it is located on federal land? That is the issue before three federal judges hearing the case in Oregon.

The Ninth U.S. Circuit Court of Appeals listened to both sides of the argument this week in Portland, in the case of Freedom From Religion Foundation v. Weber. The popular monument is located in Whitefish, Montana, another state in the Ninth Circuit. It sits on Forest Service land leased to the Knights of Columbus by a private resort.

Back in 2013, the federal District Court ruled that the statue represented First Amendment protected speech from the Knights of Columbus and the resort located on the federal land, and that it didn't violate the First Amendment's Establishment Clause as a government endorsement of religion.

The Freedom From Religion Foundation appealed in January 2014, saying that “a permanent Catholic shrine on public land is prohibited by the Establishment Clause, every bit as much as a Catholic church would be.”

The statue has been at the Big Mountain resort since 1954 and it has remained there, subject to permit approval from the Forest Service. In his 2013 opinion, Chief Judge Dana L. Christensen noted the unique history of what came to be known as Big Mountain Jesus.

“Unquestionably, Big Mountain Jesus is a religious symbol commonly associated with one form of religion. But not every religious symbol runs afoul of the Establishment Clause of the United States Constitution. To some, Big Mountain Jesus is offensive, and to others it represents only a religious symbol, but the Court suspects that for most who happen to encounter Big Mountain Jesus, it neither offends nor inspires,” Christensen wrote.

“Big Mountain Jesus has been the subject of much frivolity over the years. In addition to serving as a meeting place on the mountain for skiers, and a site for weddings, it has not infrequently been observed adorned with ski poles, goggles, ski hats, Mardi Gras beads, and other attire, all secular in nature,” he said. "To the extent Big Mountain Jesus may have had some religious significance at the time of its construction by the Knights of Columbus, and may have provided from time to time spiritual inspiration or offense to some, over the course of the last 60 years the statue has become more of an historical landmark and a curiosity,” he concluded.

Christensen relied two Supreme Court decisions in making his decision.

“Lemon and Van Orden both support Defendant's reissuance of the permit because leasing public land within a private ski resort to a private organization who maintains a statue of Jesus does not violate the Establishment Clause. The statue does not convey to a reasonable informed observer that the government, rather than a private party, endorses Christianity over any other faith or the absence of faith.”

The Supreme Court’s seminal 1971 case Lemon v. Kurtzman established a three-pronged test for Establishment Clause cases. In order for a law or practice to comply with the Establishment clause, it must first have a secular purpose; second, it must have a primary effect that neither advances nor inhibits religion; and third, it cannot foster government entanglement with religion.

The 2004 U.S. Supreme Court decision in Van Orden v. Perry held that the state of Texas could keep a Ten Commandments monument because of its historical meaning and its location at the state capitol didn’t violate the First Amendment’s Establishment Clause.

During arguments this week, Freedom From Religion Foundation attorney Rich Bolton again made the argument that the Big Mountain Jesus statue violates the Establishment Clause. "The question is whether there's a perception of religious endorsement,” he said.

According to the Associated Press, Justice Department attorney Joan Pepin said the statue has local historical meaning and was a "quirky local landmark.” "It's usually wearing a ski helmet. … There's nothing about its context that suggests devotion is encouraged."

The Beckett Fund For Religious Liberty, which represents the Knights of Columbus in this case, has made the argument that the statue is in fact a war memorial.

“Intentionally modeled after the statues soldiers encountered in the Alps during World War II, the monument honors those who lost their lives far from home. You can’t censor history just because it includes religious meaning to some,” said attorney Eric Baxter in a statement after arguments.

A decision from the appeals court is pending, but for now, Big Mountain Jesus will remain in place.