The Freedom From Religion Foundation is asking the 9th Circuit U.S. Court of Appeals to overturn a federal district court decision approving a shrine to Jesus on Big Mountain in Montana.
"A permanent Catholic shrine on public land is prohibited by the Establishment Clause, every bit as much as a Catholic church would be," asserts FFRF's appeal brief, filed Jan. 28.
A 6-foot-tall shrine to Jesus Christ sits on a 7-foot pedestal on Big Mountain in the Flathead National Forest, which is owned by the U.S. Forest Service.
Since 1953, the Forest Service has issued a permit allowing the Knights of Columbus, a Roman Catholic men's group, to place without cost a "Shrine overlooking the Big Mountain ski run," whose purpose is "to erect a Statue of our Lord Jesus Christ."
In response to initial objections to the shrine, the Knights of Columbus claimed "that our Lord himself selected this site."
FFRF wrote the Forest Service in 2011 to object to permit renewal. When Chip Weber, Flathead National Forest supervisor, agreed, determining it was "an inappropriate use of public land," he faced blistering criticism and withdrew the decision, FFRF's brief notes.
FFRF is suing on behalf of its 100 Montana members, including three who have come into unwelcome contact with the shrine. William Cox, who has long been personally opposed to the shrine, has frequent and unwanted exposure to it when he skis on Big Mountain many times each winter.
FFRF member Doug Bonham found the shrine "grossly out of place" when first encountering it, and his 15-year-old daughter, who often skis on the mountain, considers it "ridiculously out of place."
Likewise, FFRF member Pamela Morris, a third-generation Montanan, first encountered the shrine as a teenager in 1957 at age 15 as part of a ski team, when she found the statue "intrusive" and "startlingly out of place." She has since avoided the area, choosing to backpack, fish and camp where nature has not been violated.
FFRF accuses the Forest Service not only of giving preferential consideration to a Catholic shrine, but of engaging in subterfuge. After controversy erupted and the service backpedaled, it approached the Montana State Historic Preservation Office, asking that it "concur" that the shrine was eligible for listing on the National Register of Historic Places, even though religious properties are ineligible if associated with important persons, events or religious values.
In January 2012, Weber renewed the permit. The record also shows a decision by the Forest Service to emphasize the shrine's "historic" ties to development of the ski hill over its religious nature.
The record shows that the Forest Service long voiced internal concerns about the shrine's constitutionality and nervousness over "public relations problems" if it removed the statue.
In response to the government's contention that the shrine is not widely used for worship, FFRF responded that the fact that tourists may view Notre Dame for secular reasons does not "destroy the religious nature of that church."
The government has argued that because the violation is longstanding, the shrine has become "historic." FFRF argues that if courts followed such logic, segregated public schools and bans on interracial marriage would still prevail.
"The Government's argument, reduced to its essence, otherwise would mean that religious iconography on public land is acceptable if supported by popular interest groups. The Establishment Clause, in other words, would be subject to majoritarian or popular demand. That, however, is not the lesson of our Constitution — nor a paradigm for historical success, as worldwide religious conflict attests. Religious icons on public land cannot be constitutionally salvaged by local celebrity status."
FFRF v. Chip Weber, U.S. Forest Service and Knights of Columbus, Kalispell Council No. 1328 appeals District Judge Dana Christensen's June 24, 2013, ruling. Richard L. Bolton, of Boardman and Clark, Madison, Wis., is litigation attorney, with Martin S. King and Reid Perkins of Worden Thane, Missoula, Mont., serving as local counsel.