Skiing With Jesus May Not Be Illegal – But Could It Be Unconstitutional? (by Saul Barcelo)

This post is written in conjunction with the “Religion and Law in the U.S.” course dialogue project and is directed by Grace Yia-Hei Kao.

For the last  59 years, skiers in the Whitehead Ski Resort in Montana have had the privilege of skiing along Jesus Christ for no extra cost.  However, that could change in the near future, thanks to the Freedom From Religion Foundation who filed a lawsuit asking for the removal of the statue of Jesus (Freedom From Religion Foundation v. Chip Weber, Flathead National Forest Supervisor United States Forest Service). The main argument of this anti-religion group based in Madison WI, is the fact that this statue, erected back in 1953 on federal property by a Catholic nonprofit group called ‘The Knights of Columbus,” is in violation of the Establishment Clause.

Originally, the statue of Jesus was built as a religious shrine by World War II veterans coming home, who wanted to replicate similar shrines seen on European mountains during the war.  According to the anti-religion group, “The continued presence of the statue of Jesus Christ, intended as a religious shrine, gives the unmistakable appearance of governmental endorsement of religion, as does the defendant’s orchestrated justification for maintaining a religious monument on public land. The presence of a religious shrine on federal property constitutes a governmental approval of an inherently religious message” (see the article “Jesus Statue In Montana Must Go, Group Says”).

Last year, the Forrest Services agreed to remove the statue but unfortunately for the FFRF, with the amount of pressure received from the religious right, the statue of Jesus won’t be going anywhere. Supporters of the statue have convinced Chip Weber, supervisor of Flathead National Forest, to list the statue of Jesus on the National Historic Register to avoid legal actions in the future.  Still, Freedom From Religion Foundation says that according to the Montana Historic Preservation Office, listing of properties “associated with important persons or events or religious values,” are prohibited.   To go around this hurdle, supporters of the statue of Jesus labeled it “as something other than a religious shrine or war memorial.” After months of immense pressure where the Forest Service saw overwhelming support to keep the statue of Jesus at the original location, it was decided to “reauthorize the special permit to the Knights of Columbus on Jan. 31, 2012…”  This permit was issued for only ten years, however it is important to remember that ruling on this lawsuit is still pending and The United States District Court for the District of Montana Missoula Division could overturn the permit issued to The Knights of Columbus and if a violation of the Establishment Clause is found, the statue could be removed.

Although the case is awaiting a verdict, the court most likely will be reviewing other cases that deal with religious symbols in public places. To complicate matters, the legal system has not ruled consistently in previous cases and so there is no final resolution that indicates if displaying religious symbols like menorahs, crosses, and representations of the Ten Commandments in public spaces are constitutional. In other words, it won’t be easy.

A case worth mentioning due to some similarities and the possible direction the case could take is Salazar v. Buono, which has to do with the legality of the Mojave Desert Latin cross built as a memorial by Veterans of Foreign Wars on federal preserve in honor of those killed in combat.  This case became more complicated when Congress made the land where the cross was standing private property. Still, the court ruled 5-4 in favor of Frank Buono, acknowledging a violation of the Establishment Clause.  To arrive at their conclusion, the court used the Lemon Test, which has been available for other Establishment Clause cases since Lemon v. Kurtzman in 1971.  And most likely this test will be used in the FFRF v. Weber case.  The Lemon Test has three prongs, which could help the court decide if the statue of Jesus erected on federal land is unconstitutional. The test asks if the actions taken by government are 1. Secular, 2. Advance or inhibit religion, or 3. Excessive entanglement with religion. In this case, it is most likely the second prong that will be more influential in this ruling, since the Freedom From Religion Foundation argues that the statue of Jesus in federal property continues to advance one particular religion: Catholicism.

It is not clear if next winter when skiers take the ski lift to the summit of Whitehead ski resort the statue of Jesus will be waiting for them.  One thing is certain though: the heated debate over the separation of church and state will continue to be discussed in different courts around the country. Even though there are legal provisions that should mark the limitations of religion in public spaces, there will always be different interpretations made by experts of the law.  In other words, there will be some type of inconsistency.

Saul Barcelo is a first year M.A. student in the Ethics, Politics and Society program at CST. He has an M.A. in Clinical Ministries from Loma Linda University and he currently works as a full time Chaplain at the Loma Linda University Children’s Hospital.