Atheist group goes second round in Jesus statue fight

A three-judge panel of the 9th U.S. Circuit Court of Appeals heard oral arguments last week in a case that could determine whether a statue of Jesus—erected as a memorial to WWII veterans of the 10th Mountain Division—must be removed from the U.S. Forest Service land on which it has stood for more than 60 years.

Two years ago, a federal district judge in Montana dismissed a lawsuit filed by the Freedom from Religion Foundation to have the statue removed, arguing “not every religious symbol runs afoul of the Establishment Clause of the United States Constitution.” The Freedom from Religion Foundation immediately filed an appeal.

The statue, which stands at the top of the Whitefish Mountain ski resort in Montana, was erected in 1954 by the Knights of Columbus, who maintain the statue and lease the 25-foot-by-25-foot plot of land on which it stands. The Forest Service renewed the lease every 10 years until 2010, when the Wisconsin-based Freedom from Religion Foundation threatened to sue the agency, arguing the statue’s presence on federal land violates the First Amendment’s Establishment Clause.

“The Forest Service has opened up the forest for people to engage in expressive activity, and the Freedom from Religion Foundation wants them to exclude this monument just because it’s religious,” said Eric Baxter, senior counsel at the Becket Fund for Religious Liberty, who argued the case for the defendants on Tuesday. “But you can’t discriminate against speech just because it’s religious.”

Attorneys for the Freedom from Religion Foundation did not respond to requests for comment. But in documents filed prior to the oral arguments, they claimed the defendants in the case, which include both the Forest Service and the Knights of Columbus, were inconsistent in trying to claim the statue is not a religious shrine but a war memorial.

“Nobody disputes that this statue of Jesus has religious meaning for a lot of people,” Baxter told me, acknowledging the plaintiff’s attorney had used that line of argument during the hearing. But regardless of whether the speech is intentionally or unintentionally “religious,” the government cannot discriminate against it, he said.

“When you open a forum and allow anybody to come in and speak their mind, religious people are also free to speak from their perspective,” Baxter said. “It’s both a war memorial and has religious messaging for some people.”

There is a small possibility the appeals court could return the case to Federal District Court, but based on what he heard during oral argument, Baxter believes the three-judge panel will decide the case and issue a ruling within three months to a year.