"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.