Federal government's allowing Big Mountain Jesus statue on federal land in Montana doesn't violate the Establishment Clause

|The Volokh Conspiracy |

Big Mountain Jesus statue. Credit: Becket Fund for Religious Liberty.
Big Mountain Jesus statue. Credit: Becket Fund for Religious Liberty.

A Ninth Circuit panel has just rejected a Freedom from Religion Foundation challenge to the Montana "Big Mountain Jesus" statue, which was apparently first placed on government land in 1954.

Here's most of the opinion, signed by Judges N.R. Smith and John Owens:

[T]he government's continued authorization of the [Big Mountain Jesus] statue on federal land does not violate the Establishment Clause. [Footnote: Our analysis assumes, without deciding, that [the U.S. Forest Service's] continued authorization of the statue on public land constitutes government action.

First, USFS's decision to renew the statue's permit reflected a primarily secular purpose. The government identified secular rationales for its continued authorization including the statue's cultural and historical significance for veterans, Montanans, and tourists; the statue's inclusion in the National Register of Historic Places; and the government's intent to preserve the site "as a historic part of the resort." See Access Fund v. U.S. Dep't of Agric., 499 F.3d 1036, 1043 (9th Cir. 2007) (site's inclusion in the National Register of Historical Places evinces Forest Service's secular motivations—"the preservation of a historic cultural area"); Kreisner v. City of San Diego, 1 F.3d 775, 782 (9th Cir. 1993) ("A reviewing court must be 'reluctant to attribute unconstitutional motives' to government actors in the face of a plausible secular purpose.").

Although the dissent focuses on the monument's appearance, that the statue is of a religious figure, and that some of the initial impetus for the statue's placement was religiously motivated, does not end the matter. See Van Orden v. Perry, 545 U.S. 677, 699 (2005) (Breyer, J., concurring in the judgment) ("[T]he Establishment Clause does not compel the government to purge from the public sphere all that in any way partakes of the religious."). USFS's "intent is the key here, and nothing apart from the [statue's likeness] suggests a religious motive on [USFS's] part."

Second, USFS's permit authorization did not constitute an endorsement of religion. Our determination is based on the following: (1) there is nothing in the statue's display or setting to suggest government endorsement; the twelve-foot tall statue is on a mountain, far from any government seat or building, near a commercial ski resort, and accessible only to individuals who pay to use the ski lift; (2) the statue's plaque communicates that it is privately owned and maintained—"it did not sprout from the minds of [government] officials and was not funded from [the government's] coffers"; (3) besides the statue's likeness, there is nothing in the display or setting to suggest a religious message. The mountain's role as a summer and winter tourist destination used for skiing, hiking, biking, berry-picking, and site-seeing suggests a secular context; the location "does not readily lend itself to meditation or any other religious activity," and the setting "suggests little or nothing of the sacred," Van Orden, 545 U.S. at 702 (Breyer, J., concurring in the judgment); (4) 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; (5) local residents commonly perceived the statue as a meeting place, local landmark, and important aspect of the mountain's history as a ski area and tourist destination; and, (6) there is an absence of complaints throughout its sixty-year history, see Van Orden, 545 U.S. at 702 (Breyer, J., concurring in the judgment) (reasoning that the monument's forty-year unchallenged history "suggest[s] more strongly than can any set of formulaic tests that few individuals … are likely to have understood the monument as amounting … to a government effort to favor a particular religious sect, … to 'compel' any 'religious practic[e],' or to 'work deterrence' of any 'religious belief'" (alterations in original)).

Finally, the facts of this case are not commensurate with [the] facts in [Trunk v. City of San Diego, 629 F.3d 1099 (9th Cir. 2011)]: (1) the forty-three foot tall cross in Trunk was "visible from miles away and tower[ed] over the thousands of drivers who travel[ed] daily on Interstate 5"; (2) the cross's plaque, identifying it as a war memorial, was added only after litigation began; (3) for the majority of its history, the cross was not, in fact, a war memorial, but a religious symbol and a place where Easter services continued for more than forty years; (4) the memorial's location "in the heart of a largely homogenous and exclusionary community" had a "history of anti-Semitism that reinforce[d] the Memorial's sectarian effect"; and, (5) at least for the last two decades, the cross had "become a flashpoint of secular and religious divisiveness," and "heated litigation." …

Judge Harry Pregerson dissented:

The First Amendment freedom of religion clauses serve "to assure the fullest possible scope of religious liberty and tolerance for all[,] … to avoid that divisiveness based upon religion that promotes social conflict[, and] … to maintain that separation of church and state that has long been critical to the peaceful dominion that religion exercises in this country." Trunk .

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, to determine the effect of the statue we ask whether "it would be objectively reasonable for the government action to be construed as sending primarily a message of either endorsement or disapproval of religion." Id. at 1109. I submit that a "reasonable observer would perceive" the statue situated on government land "as projecting a message of religious endorsement." Id. at 1118.

There's a good deal in the Supreme Court's Establishment Clause jurisprudence that strikes me as not quite right. To begin with, inquiries into the government's supposed motive are always tricky, and vulnerable to charges of manipulation or naivete. Among other things, most things that people do—and even more so most things that multi-member government agencies do—have many different motives, whether policy motives or political motives. Here, they may include the desire to maintain a monument that has stood for half the history of the state of Montana, the desire not to displace something that has been seen by many as related to veterans (who were indeed mostly Christian), the desire to promote Christianity, the desire to resist forces that were seen as anti-Christian or excessively secularist, the desire to do whatever it takes to yield the least political opposition, and more.

Moreover, assertions about the lack of complaints might simply reflect that complaints about such things are often highly unpopular in many circles, and that many people can be quite upset and yet still not want to fight a thankless and uphill legal battle. On the other hand, framing Establishment Clause doctrine as a means of preventing "divisiveness based upon religion that promotes social conflict" strikes me as unrealistic; my sense is that attempts at substantial judicial enforcement of the Establishment Clause has likely produced more religious divisiveness and social conflict than a more minimalist reading of the Establishment Clause would have yielded. (To be sure, one can say that the Clause forbids certain kinds of government speech, and it should be enforced regardless of the divisiveness that such enforcement might yield—but my point here is simply that trying to defend Establishment Clause doctrine as a means of preventing divisiveness is not a sound defense.)

Nonetheless, one bottom-line conclusion, which emerges in some measure from the admittedly splintered and confusing decisions in the Ten Commandments cases (especially Van Ordern v. Perry) is indeed the "no expurgation of history" principle—what Justice Breyer's concurrence phrased as "[T]he Establishment Clause does not compel the government to purge from the public sphere all that in any way partakes of the religious," especially when applied to relatively longstanding historical items. To be sure, the Big Mountain Jesus isn't quite the Bamiyan Buddhas, but 60-year-old items are still pretty historical by American standards. And American history is more generally closely tied to religion, in our place names (Los Angeles, Providence), our historical documents (the Declaration of Independence, nearly all state constitutions, the Star-Spangled Banner), our monuments (including war memorials), and more.

The Big Mountain Jesus is, as the panel majority suggests, a rather informally treated historical monument. But it seems to me that the panel's bottom-line conclusion, which is that this sort of historical monument ought not be ordered off government land, is both consistent with the admittedly messy and mushy Establishment Clause doctrine, and likely the right result more broadly. And I say this as someone who is not at all religious.