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Judge rules Jesus shrine suit can proceed

The Freedom From Religion Foundation’s closely watched lawsuit against the U.S. Forest Service and the Catholic Knights of Columbus council in Kalispell, Mont., got a green light Nov. 27 from U.S. District Judge Dana Christensen.

FFRF sued in February 2012, seeking a declaration that the “continued presence of a six-foot-tall statue of Jesus Christ in the Flathead National Forest, on a 25-by-25-foot plot owned and administered by the United States Forest Service, violates the Establishment Clause of the First Amendment to the Constitution of the United States.”

The Knights placed the shrine in 1954 after receiving a special-use permit from the government. The Forest Service continued to sanction the shrine overlooking the Big Mountain ski run until the most recent lease ran out in late 2010. FFRF filed a complaint in early 2011 and was informed that summer the Forest Service wouldn’t renew the permit.

After U.S. Rep. Denny Rehberg, R-Mont., made a fuss, essentially running for Senate on a “save the Jesus statue” platform, the Forest Service quickly reversed the denial. (Rehberg, by the way, lost his Senate bid in November.) FFRF had received such nasty e-mails and phone calls in response to publicity that it chose not to name FFRF members in the initial legal complaint.

After several defendants sought to have the suit dismissed, FFRF submitted a declaration by FFRF member and local resident William Cox, who asserted he “had and will continue to have direct and unwelcome contact with the statue.”

In his Nov. 27 ruling, Christensen said: “Cox’s declaration meets [standing requirements]. He is a member of FFRF, he lives 15 miles from Whitefish Mountain Resort, he is a frequent skier at the resort who has skied past the statue many times previously and intends to again this winter, and he is a non-believer who considers the statue religious in nature and offensive.”

The judge added, “Cox would have standing to sue in his own right if he were a named plaintiff.”

Cox, who has skied past the shrine at Whitefish Mountain Resort, known as Big Mountain, his entire life, was interviewed Dec. 3 about the controversy by Melissa Block, host of “All Things Considered” on National Public Radio.

“I’ve regarded the statue as an absurdity,” Cox said. “I resented it the first time I saw it, and it’s just kind of a bizarre thing to discover Jesus standing there in the snow. So I thought to myself, I think I’ll join this organization [FFRF]. I’m no longer a person of faith, and subsequently, they contacted me and asked whether I would care to be a witness.”

He added, “You know, we live today in a religiously diverse and multicultural society, and it’s offensive to many people, some of whom I know intimately. My wife is Jewish, and it’s worrisome to them that religion, particularly Christianity, plays such a prominent role in our political life. Often, it appears to me to be a somewhat hypocritical role. In any event, the Constitution provides that in essence the federal government shall not establish religion, and this is a clearly religious shrine.”

The Knights of Columbus are intervening as defendants and are being represented by the Becket Fund for Religious Liberty, which filed a motion to dismiss the suit. Eighteen members of Congress filed an amicus brief seeking to dismiss FFRF’s lawsuit in August, with the help of Pat Robertson’s “American Center for Law and Justice.”

Members of Congress who opposed FFRF’s suit were Rehberg, Dan Burton (Ind.), Michael Conaway (Texas), Chip Cravaak (Minn.), J. Randy Forbes (Va.), Virginia Foxx (N.C.), Vicky Hartzler (Mo.), Bill Johnson (Ohio), Walter Jones (N.C.), John Kline (Minn.), James Lankford (Okla.), Cathy McMorris Rodgers (Wash.), Jeff Miller (Fla.), Sue Myrick (N.C.), Alan Nunnelee (Miss.), Dennis Ross (Fla.), Steve Scalise (La.) and Lynn Westmoreland (Ga.).

FFRF’s complaint and litigation over the “Big Mountain Jesus” has prompted international coverage, as well as religious hysteria. The Nov. 28 news story in the Daily Mail in London  was headlined:“Hearts of ice! Atheists campaign to remove six-foot tall Jesus statue erected a WAR MEMORIAL at ski resort.” 

FFRF has pointed out a Christian shrine would not be an appropriate war memorial on federal property, but calls the claim a sham anyway. Returning Catholic soldiers from Kalispell got the idea after seeing shrines to Jesus in the Alps.

FFRF is asking the court to enjoin the defendant from continuing to approve the shrine for federal property and ordering the Forest Service to direct the Knights of Columbus to remove it. 

The case, FFRF, Annie Laurie Gaylor, Anne Nicol Gaylor and Dan Barker v. United States of America, was filed on FFRF’s behalf by attorney Richard L. Bolton and local counsel Martin S. King. Christensen, who was confirmed as an Obama appointee in December 2011, had practiced law in the Kalispell area since 1977. Read the decision at:


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FFRF, ACLU sue over Ohio Jesus portrait

The Freedom From Religion Foundation and the American Civil Liberties Union of Ohio filed a lawsuit today (Feb. 6, 2013) on behalf of plaintiffs who seek removal of a portrait of Jesus from Jackson Middle School in Jackson.

FFRF sent an initial letter of complaint Jan. 2 to Jackson City School District Superintendent Phil Howard. Howard is a named defendant, as are the Jackson City Board of Education and the school district.

The suit was filed in U.S. District Court for the Southern District of Ohio on behalf of a child who attends Jackson Middle School and the parents of children who attend school in the district.

The portrait of Jesus Christ is prominently displayed on an entrance wall at the school, where it has been located for some years. The superintendent has stated that “it would take a court order to remove the picture,” according to the complaint.

Dan Barker, FFRF co-president and a former evangelical minister, is very familiar with the painting, having encountered it himself in countless Christian churches. “It boggles the mind that in 2013, a public school superintendent and school board would not understand that a devotional painting of Jesus, called ‘The Head of Christ,’ — identical to millions hanging in churches and Sunday school classrooms around the country — may not be posted at the entrance of a middle school.”

Displaying the portrait violates the First Amendment's Establishment Clause, the 14th Amendment and Article I, Section 7 of the Ohio Constitution, the suit alleges, and the defendants’ actions "have no legitimate secular purpose, and are motivated by a desire to advance a religious purpose."

Plaintiffs seek removal of the portrait and a permanent injunction barring "any substantially similar display."

FFRF Senior Staff Attorney Rebecca S. Markert and James L. Hardiman, Jennifer Martinez Atzberger and Michael Honohan of the ACLU of Ohio are plaintiffs' attorneys.

The suit was filed using pseudonyms for the plaintiffs rather than their true identities. A motion has also been filed seeking to maintain plaintiffs' anonymity, along with a protective order barring disclosure of their personal information so that they aren't subject to potential adverse consequences, including harassment and personal threats.

(Read the memorandum for protective order here for the thorough documentation of the historical record of harassment of Establishment Clause plaintiffs and their children.)

The federal lawsuit is in the court of U.S.District Judge Algrnon Marbley, a Clinton appointee. The case number is: 2:13-cv-112.


Memo for protective order

Exhibits 1-10, A & B



maxAt FFRF’s national convention in October in Portland, Ore., Len Eisenberg, who with his wife Karen endows FFRF’s Thomas Jefferson Youth Activist Award, introduced Max Nielson, student plaintiff in FFRF’s ongoing South Carolina lawsuit over a school district policy that sanctions graduation prayer. Max received a $1,000 Catherine Fahringer Memorial Student Activist Award from FFRF.

Hello, everyone. It’s really great to be among such admirable and wonderful people. Don’t you feel that energy when we’re all in the room together? We’d like to thank Annie Laurie and Dan and all the people at FFRF because, even though we provide a little financial help, they’re the ones who have to talk with Sean Hannity and take a shower afterward. They’re doing all the hard work.

Max Nielson is a pretty amazing person. He’s not only a black belt in karate and an Eagle Scout, he’s earned the equivalent of an international high school diploma. He’s won not one but two board of director seats for secular coalition groups in the Carolinas area, and he’s also the founder and president of the Secular Student Alliance group at his college, the College of Charleston.

He also told me he’s an amateur contortionist. He’s going to turn himself into a human pretzel up on the stage here — or maybe not. He’ll tell you all about his saga with trying to get the school graduation prayer stopped, and how this has been a really transformative event in his life. So will you please welcome, Max Nielson. — Len Eisenberg

Hi Mom. That’s Mom [in audience]. She’s great. So, like they said, I’m Max Nielson. I grew up in South Carolina for the most part.

I was born in Atlanta, moved away when I was 4. Canadian father, rural South Carolinian mother, and so if I say, you know, the “sooth,” or “oot and aboot,” feel free to laugh, just laugh, it’s very comic.

Growing up in South Carolina, you might not think it, but I had a really secular upbringing. I attended the Unitarian Universalist congregation of Columbia. Many times, the pastor when I was going was regularly Mister Reverend Patrick, or something like that. He was a pagan. It wasn’t this idea that “Oh, there’s one true religion.” That was never really introduced to me in any solid way.

As I was going through school, I encountered a lot of people who were very fundamentally religious — like the kind of a goofball kid in seventh grade who rejected the science lesson because he knew Earth was 6,000 years old. And I was like “Weird! What are you doing?!”

That kind of got me interested, so I started studying counter-apologetics through middle school, and that was fun. I really enjoyed getting to rationalize things that were not rational.

Another big part of my youth was Boy Scouts of America. I stayed in the closet long enough to get the Eagle Scout. That was good, but kind of ironic. My entire troop knew I was an atheist, but they went ahead and made me chaplain’s aide. So, yeah, I can sympathize with Dan, I’ve led a few prayers, too.

High school was great. No it wasn’t. But in ninth grade I was in Irmo, South Carolina, and the Pastafarians at USC just brought in a pretty amazing speaker, Richard Dawkins. I got to see him in ninth grade, and I was young and didn’t know anything. I kind of formulated this idea, like “Oh hey, I should probably be a scientist, so that I can help humanity.”  Another thing that happened early in high school is someone wanted to form a Gay-Straight Alliance, and the principal resigned over it. He walked out. He retired early because he didn’t want to be the principal at a school with a Gay-Straight Alliance. That was also weird.

Later in high school, I got into the international baccalaureate program. It’s a smaller program at most high schools, and especially mine, so I was around 30 of my really close friends, and in the classroom, day to day, religion just stopped being a topic. I was that mildly articulate atheist kid who would shoot down your argument, and that was fun, but it never came up

After I qualified for the international baccalaureate diploma, I was pretty much the paragon of post-high school apathy. I did not care about anything, and it was fantastic! But 10 days before graduation [at which Christian prayer would be recited because a majority of seniors voted to have prayer], my good friend Kelly Freeman linked me to an interview with Harrison Hopkins on a podcast called “A Matter of Doubt.”

He challenged almost the exact same policy at his high school in Lawrence County, S.C. It was 10 days before graduation, but I knew I had to do something, because I could do something, and that made all the difference. Kelly walked me through it.

She basically pointed me at the most important button on any activist website ever: Contact Us. So I did, and FFRF got back to me very fast, either that same day or the next day. Through that, I scheduled meetings through the principal, and FFRF sent legal letters to the school district to back me up.

Mom: ‘Yeah, go ahead’

Right about this time, my mom comes home from school. She’s a teacher at that school. Yeah, she’s been teaching English at Irmo High School for seven years. So, she gets into the computer room, and I’m just covered in sweat, out of my mind, deliriously excited that I can fight injustice as I saw it. She can tell I’m visibly disturbed, and I lock eyes with her, and I’m, “Mom — can I stir shit up?”

And she’s like, “Yeah, go ahead,” which was amazing. She had my back, she was with me. She had always felt uncomfortable with the public prayers they had at graduation.

I met twice with my principal, Mr. Weinkle. The first time, he just wanted to make sure I wasn’t crazy. He made this really bizarre reference, looking down and holding his belt, “I’m from a town in North Carolina. I totally see where you’re coming from with this, it’s a pretty a metropolitan area, but I can’t help you because this is the bible belt.” That was shocking.

It seemed like he understood the issue. He understood why it was wrong but still wasn’t willing to help because of where we were [in the bible belt]. To me, that just wasn’t acceptable. So I contacted the superintendent and FFRF got me an amazing lawyer, Aaron Kozloski. It was great to have Aaron on the case; he’s a brilliant guy. It’s been really fun working with him.

The second time I met with my principal, he handed me the district policy. What it basically said was they could have prayer if it was nonsectarian and nonproselytizing. Nonproselytizing pub-
lic prayer, folks; you heard it here first.

Leading up to meeting with my superintendent, I knew that if I walked in as one voice, I would probably be dismissed as one voice, because that’s what tends to happen. So I got pretty busy.

In one night, I talked to 150 people online — friends, strangers, people who were my friends on Facebook, it didn’t matter. I heard some strange things, but every single person I talked to supported my actions. They all trusted me enough as a person, and understood the issue well enough to see that what the school was doing, even if they agreed with it, wasn’t constitutionally sound.

Amazing support

I met with Steven Friedman, who had pushed the issue of starting a Gay-Straight Alliance at Irmo High School that caused Mr. Walker to walk out. I sat down with him at a coffee shop, and we wrote a nice little letter to [Superintendent] Stephen Hefner.

When I walked into Mr. Hefner’s office, I gave him the letter. Mr. Kozloski was also there. It was a productive, friendly meeting. Mr. Hefner said he’d get back to me later that day. And so, I received this famously quotable email:

“While I am a staunch supporter of separation of church and state, I do not believe that freedom of religion should be interpreted as freedom from religion within public schools.” 

That’s one hell of a proposition. The next day was graduation, and I walked across, and they prayed, and I didn’t remove my cap, and I did lock eyes with the superintendent.

A lot of news interviews followed, and from what I’ve heard, the comments got nasty. The only one particularly scary kind of event or comment was online, someone who posted my home address and cell phone number.

That was sandwiched between two mildly aggressive people blurting out anger at me. So, as Len said, I do have black belt in karate, and I was walking around the house with my bow staff like “I’m not going die today.”

I was pretty convinced I was going to live. Nothing happened, of course, so I was fine. What was so weird and crazy to me about my case was that the moment it was a story, so much support came out of nowhere — the community, the national atheist community, FFRF, Friendly Atheist, Secular Student Alliance, Center for Inquiry.

I had no idea any of this existed, and they were all within an instant surrounding me in support and compassion and reason, and it felt amazing because on no level of this issue was I, the kid, doing the terrible thing. I was the person standing up, and everyone saw that, and it was great.

Most recently, we’ve had the North Carolina Student Secular Summit, which is a terribly long name, and it was great. It was supported by the Triangle Freethought group, which I believe is an FFRF group, right? Yes.

We also have the Carolina Secular Association now, and the Secular Coalition for South Carolina, and Harrison Hopkins has a student group at Presbyterian College in South Carolina. Harrison has already raised more than $2,000 at Presbyterian College, a school with fewer than like 5,000 kids, for the Leukemia Lymphoma Society. That’s amazing!

In this lawsuit, to maintain legal standing [because he’d graduated], I had to get two co-plaintiffs, two good friends of mine. Dakota McMillan, one of them, just this past week, I believe, started the Secular Student Alliance at Irmo High School, the 400th SSA affiliate.

The final point I’d like to make: I feel like, maybe, that bible belt Mr. Weinkle was referencing is starting to get unbuckled. And I think we in the freethought movement throw around the term a lot when we’re talking about the South. From what I’ve seen, using that term did nothing but support the Religious Right’s claim in my case.

I think this is the rise of the “secular South.” Thank you all. Thank you all so much!

Matthew “Max” Nielson is principal plaintiff in FFRF’s federal lawsuit against School District 5 of Lexington and Richland Counties, S.C. Jacob Zupon and Dakota McMillan are co-plaintiffs who will graduate respectively from Irmo High School in 2013 and 2014, keeping the lawsuit ripe. A district policy titled “School Ceremonies and Observations” sets guidelines for benedictions and invocations at graduations and athletic events: Use of prayer “will be determined by a majority vote of the graduating senior class with the advice and counsel of the principal.”

The prayer, written by the district but delivered by a student “volunteer,” was addressed to “Father” and asked for the “Lord’s guidance, protection and mercy,” asked students to be “touched” by “the Lord,” to be led “on the path you intend for their lives to lead” and thanked a deity for “the teachers, parents and administrators that were here through our 12 years of school.”

FFRF is a non-profit, educational organization. All dues and donations are deductible for income-tax purposes.

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