September 1, 2015

"Big Mountain Jesus" survives an attack by the Freedom from Religion Foundation.

The 3-judge 9th Circuit panel was split, with Judges N.R. Smith and John Owens in the majority.

Smith and Owens found that the U.S. government had a secular purpose: "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.'"

And the majority had 6 reasons for rejecting the notion that the government was "endorsing" religion:
(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...
That's not the usual way we spell "sight-seeing," but I guess it's a site... and here comes a cite:
... 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)).
Note the emphasis on Justice Breyer's concurring opinion in Van Orden, which was the case about the 10 Commandments monument next to the Texas state house. This emphasis is justified, as Breyer was the deciding vote in that case and another 10 Commandments case that came out the same day and went the other way. Following Breyer, you end up with multifactored, contextualized judgment.

The dissenting judge in the 9th Circuit was Harry Pregerson. He didn't go for the Breyer-style multifactored analysis but asked whether a reasonable observer would perceive "a message of religious endorsement."

Lawprof Eugene Volokh — at the first link, above — approves of the outcome. He says "the Supreme Court’s Establishment Clause jurisprudence" is "not quite right" because: 1. It's too "tricky" to look into "government’s supposed motive" ("[M]ost 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"). 2. 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." 3. It's "unrealistic" to take account of "divisiveness." And what about history? Volokh says: "[T]he Big Mountain Jesus isn’t quite the Bamiyan Buddhas, but 60-year-old items are still pretty historical by American standards," and even though Big Mountain Jesus wasn't really treated like your usual historical monument: "[T]his sort of historical monument ought not be ordered off government land."

The litigation goes all the way back to 2011. Here's my original post on the subject from then. I said:
... I think removing the statue is not necessary to comply with the Establishment Clause. I go back to what Justice Breyer wrote in one of the 10 Commandments cases that the Supreme Court decided in 2005 [Van Orden]. Breyer... was the only member of the Court in the majority in both cases.

Justice Breyer quoted the 1963 school prayer opinion written by Justice Goldberg: "[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious."

And Breyer concluded that taking down the old stone monument in Texas would "exhibit a hostility toward religion that has no place in our Establishment Clause traditions" and "encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation," which would "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid."

Big Mountain Jesus is a 50-year-old part of the landscape, so it's probably a good idea to take Justice Breyer's advice seriously and ski clear of divisiveness and a brooding and pervasive devotion to the secular.

31 comments:

tim in vermont said...

Freedom from busybody tools would be a better organization.

Bay Area Guy said...

Hey, every now and then the traditionalists win a small cultural victory. My morning coffee will taste a smidgen better this morning!

Bob Boyd said...

Part of the justification for changing the name from McKinley back to Denali was stated to be that mountain's deep cultural significance to natives due to its central role in their creation story.
I wonder if the Freedom from Religion Foundation will sue to prevent such a blatant government endorsement of religion.

Peter said...

Federal courts reach Peak Secularization?

Nah. Occasionally the juggernaut hits a pebble and slows down, but, it doesn't actually stop and surely never reverses.

The Drill SGT said...

I wonder if the Freedom from Religion Foundation will sue to prevent such a blatant government endorsement of religion.

I doubt it. Those are brown people.

You don't see the FFRF guys wanting to blow up the California Missions.

They might go after the Alamo though. Those evil Anglo's were fighting those little Brown boys... But good triumphed and Crocket bought the farm.

However, The Daughters of the Republic of Texas are tough old ladies...

tim in vermont said...

The American Indian museum in D.C. is remarkably short on scientific archaeology and remarkably strong on Indian superstition reported as fact. It is the equivalent of a museum with Jesus on a dinosaur.

traditionalguy said...

The terrible, horrible, and insane belief that there is a creator God that came to earth as a man named Jesus must be stopped. You can find that duty in the Constitution. You just have to stand on your head and read it backwards.

The Drill SGT said...

The American Indian museum in D.C. is remarkably short on scientific archaeology and remarkably strong on Indian superstition reported as fact. It is the equivalent of a museum with Jesus on a dinosaur.

But those are Brown people, and for the most part, not Christian. Different rules....

Eric the Fruit Bat said...

That photo must have been taken just a second or two before Big Mountain Jesus made all the snow disappear.

Renee said...

"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; "

Well then it should be taken down by the owners voluntarily, if people just use that statue to mock it.

William said...

They say you can't blaspheme a dead god. You can make fun of Jupiter or Venus all you want because there are no believers to take offense. You can thus erect religious monuments at ski resorts because Jesus is there mostly to provide comic relief. It would be different if people kneeled before him and prayed for snow or a successful run. This monument is more secular than religious.

William said...

If a religious monument is sited at a place where it is more likely to be blasphemed than venerated, shouldn't it be the religious people who sue for its removal?

James Pawlak said...

The Bill Of Rights. Religion & Intent
1. The original intent of the "separation clause" was to prevent only the new Federal government from establishing a national sect/religion (As was the Church of England in the UK, the Lutheran Churches in parts of Western Europe, the Catholic Church in other parts of Europe, the Orthodox Churches in the East and, for that matter, various forms of Islam where such ruled). In fact, some of the Several States maintained "official churches" into the 1830s, and that without SCOTUS intervening.
2. President Thomas Jefferson addressed all matters of considering the Constitution as being best considered in the light of the intent of its authors (A).
3. The current misunderstanding of that clause was written down by a Justice who was an active member of the KKK and who held a life-long hatred of the most orthodox of Christian Churches being the Catholic Church. It was based on one private letter of President Jefferson and was/is opposed to the intent of the Founders and two-hundred years of honoring the Judeo-Christian base of our exceptional nation.
4. Such persons are attempting to unconstitutionally suppress orthodox Christianity and Judaism in favor of establishing the "Religion Of Atheism" (B).
NOTES
A. "On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to to the probable one in which it was passed." [Please specially note that the term "trying" was used as in "boiling down" something (eg Whale blubber or the Constitution) to obtain what the actors wish (eg Whale oil or perverse decisions by judges "making law from the bench"; About which please see the novel Moby Dick.]
B. James J. Kaufman VS Gary R. McCaughtey, et. al.; 7th US Court Of Appeals #04-1914;
Decided Aug. 19, 2005

lgv said...

Meanwhile the Jordanian chapter of the FFRF have petitioned the courts there to blow up Petra because it projects a pro-Hellenic religion.

The Brazilian chapter is also trying to remove that really big Jesus in Rio.

Michael McClain said...

When will the Freedom from Religion folks sue for the removal of the Satan statue from that courthouse lawn in Oklahoma?

MaxedOutMama said...

Certainly our brooding capacity should be deployed elsewhere. Disturbing, pressing issues abound.

I think you must be a very good law professor. The way you put things can be quite memorable.

Rusty said...

I've been to the top of that mountain several times and didn't even know it was there.

Honestly. Who the hell is it hurting?

Hagar said...

May or may not be off topic.

How does Kim Davis, the couny clerk of Rowan County, KY, differ from the folks who argue for their right to establish "sanctuary cities," "legalize" marijuana by state laws, etc., and so on?

jimbino said...

The message from the gummint: it's not OK to preserve statutes that insult the children of slaves, but it is OK to maintain those that only insult non-Christians.

Michael said...

I see no need to assume that the FFRF people are remotely sincere, or anything but attention-seeking busybodies. Besides, BMJ is folk art and shouldn't be legally different than a statue of Pete Seeger or John Henry.

Hagar said...

The "Freedom from Religion" crowd is also threatening to sue the Town of Belén, NM if it does not remove the creche on the plaza, symbolizing the name of the town. (Belén is a Spanish contraction of Bethlehem.)
The city fathers say, "Bring it on!"

Drago said...

jimbino: "The message from the gummint: it's not OK to preserve statutes that insult the children of slaves, but it is OK to maintain those that only insult non-Christians."

"Piss-Christ" says what?

Freeman Hunt said...

"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; "

Well then it should be taken down by the owners voluntarily, if people just use that statue to mock it.


No, we're supposed to be excited by the idea that the government does not want to embrace a "brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious" as evidenced by the fact that the government is allowing a statue to stand in part because of "the flippant interactions of locals and tourists with the statue [which] 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."

"We're not trying to cleanse the public space of religion! We'll allow anything religious that's old and that people see as secular or especially mockable."

Hagar said...

J. Pawlak above is absolutely right.
In plain English, the 1st Amendment says that the Federal Government is not to interfere with the local free exercise of religion around the country.
The eminent Justice Hugo L. African-American, former official of the Birmingham, AL KKK, and FDR's "enforcer" in the U.S. Senate, set that on its head and somehow got the powers that be to believe that the Amendment is a license for the GOvernment to extinguish the exercise of any religion (any theistic religion that is, never mind secular "religions") that may show its face anywhere, any time.

Jim in St Louis said...

I found the picture to be charming. As for the skiers taking selfies or doing bunny ears with the statute, seems like harmless fun, Jesus is certainly not hurt by it.

TFRR group just spent an awful lot of lawyer money on something that did not seem to have much impact.

Sigivald said...

Goldberg's opinion is quite correct.

The First Amendment means the Government is not to establish a Church; by inference and as a means to that end, it is not to prefer one religion (or lack thereof) above any other as a matter of policy, or by its actions.

"Letting a statue it didn't pay for and doesn't maintain, continue to exist on State property" is nothing remotely like the establishment of a Church ... or even an expression of preference for one sect or one faith over another, which is what the Amendment bans.

(We might get into such a case if other faiths or anti-faiths wanted to put one up and the State forbade them without a good neutral reason [lack of room, say]. But that is not the case here.)

(Full disclosure: I'm a lifelong atheist. And being a non-convert one, I don't have a giant chip on my shoulder about religion.)

Hagar said...

No. The fear at he time was that the new central government would attempt to interfere with the ocal communities' religious beliefs and practices, and that is what the amendment is designed to prevent.

deepelemblues said...

Expression of religion on public land is not endorsement of religion by the state.

That it is an endorsement of religion of the state is the legal fiction pushed by authoritarian atheists and agnostics who wish to tell other people what they can and cannot do in public, because the atheists and agnostics cannot emotionally handle seeing such things in public, and because they wish to incrementally destroy religion as an institution in any part of society, public or private.

It's fascism and it needs to be fought against.

Rusty said...

"jimbino said...
The message from the gummint: it's not OK to preserve statutes that insult the children of slaves, but it is OK to maintain those that only insult non-Christians."

Neither one insults my good name nor picks my pocket.

iowan2 said...

Several have gotten it right. The judiciary gets to amend the constitution from the bench. The 1 amendment forbids congress from establishing a church. According the the federal constitution, a state can, and did establish state churches.And I dont see how you can incorporate the first to the state level because it clearly prohibits congress. Only.

n.n said...

Freedom from morality? Hardly. Even pro-choice is a moralistic doctrine, selectively, accompanied by grotesque artifacts. More like freedom from someone else's religion and traditions.