Big Mountain Jesus Survives Lawsuit. Again.

Update: As of November 2015, the full Ninth Circuit refused to re-hear the FFRF appeal, effectively ending the case.

The Montana ski resort statue known as “Big Mountain Jesus” has survived the most recent challenge to have it torn down (from the appeal argued in July). The Freedom From Religion Foundation, a small atheist group that scours the country for signs of religion over which to be offended, sued because the statue is technically on federal land, though the land is perpetually leased to a ski resort. The Becket Fund for Religious Liberty defended the statue.

The statue was built in the style of European shrines by the Knights of Columbus to honor the 10th Mountain Division.  The Division’s soldiers fondly recalled the many shrines they saw during their combat in World War II. In that regard, it was not raised as a religious shrine itself, as the FFRF claims, but as a memorial that invokes those shrines as an homage to the 10th Mountain Division.

The Appeals Court panel found, in a 2-1 ruling, the statue was essentially secular in purpose — including as justification its “irreverent” use: 

Two members of the three-judge panel agreed with U.S. District Judge Dana Christensen of Montana, who found that the statue’s secular and irreverent uses outweighed its religious uses.

In June of 2013 Christensen wrote that “Big Mountain Jesus has been the subject of much frivolity over the years,” serving as a meeting place for skiers, a wedding location and being festooned with ski hats, goggles, Mardi Gras beads and other secular decorations.

To be fair, it is pretty unlikely that a “religious shrine” — particularly one promoted by the government — would be allowed to be treated in such a fashion.

Like the cross, a statue of Jesus probably has an obvious connection to the Christian faith. That does not mean the US government violates the Constitution every time it uses or allows a cross — or Jesus — in a memorial. (In this case, the statue is at “arms length,” as it is not owned by the government or even on land that it controls — yet the FFRF oddly still claims it establishes religion.)  Becket Fund attorney Eric Baxter agreed:

“Does a statue standing alone in the forest establish an official state religion? Today the Ninth Circuit emphatically said no.” said Senior Counsel Eric Baxter. “The Court rightly rejected Freedom From Religion Foundation’s radical idea that a privately-owned memorial standing in the middle of a ski resort violates the Constitution.”

Still, like many similar court rulings, the Court in this case punted the real question, meaning the FFRF and others like it will continue to bring these kinds of challenges.

The literary wrangling and semantic works of art these judges sometimes produce to find a secular angle or to say that a symbol isn’t really religious, therefore its ok, is ridiculous. The courts should simply recognize — as some Justices on the Supreme Court have — the Constitution does not require the government to scrub either itself or the general public of any semblance of religiosity.

No one wants the US government to establish a religion or even favor one religion over another.

But it would breathe fresh air into the US Constitution — and prevent years of frivolous judicial proceedings — if the courts would simply state that some things are religious, and that’s ok.  For example, while Big Mountain Jesus really is more secular than religious in the big scheme of things, the Court could have said the statue is a religious symbol — but because it does not establish religion or in any other way affront the US Constitution’s Establishment Clause, it can lawfully reside at the ski resort, even on government land.

Avoiding the issue — like selling a square of land under a memorial so it is no longer on government property (see the Mojave Cross and Mount Soledad) — only delays it, and means anti-religion groups will continue to litigate their heckler’s veto in future cases.

It’s time for the issue to be solved.