Tuesday, September 1, 2015
A divided panel of the Ninth Circuit today upheld a U.S. Forest Service decision to renew a permit for the Knights of Columbus's Jesus statute on public land. The ruling means that Jesus stays on the USFS's Big Mountain.
Judge Owens wrote that the statute didn't violate the Establishment Clause, because the USFS's decision to renew the statute's permit reflected a primarily secular purpose (despite its portrayal of Jesus), and because USFS's permit didn't endorse religion. (According to Judge Owens, several factors suggest that the permit didn't endorse religion, including "the flippant interactions of locals and tourists with the statute [including] decorating it in mardi gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as [mountain-goers] ski by, and posing in Facebook pictures.") Judge Owens also distinguished Trunk v. City of San Diego, where the court ruled that a giant cross violated the Establishment Clause.
Judge N.R. Smith concurred, but argued that the case should be analyzed as private speech in a public forum. Judge Smith wrote that the permit should be upheld so long as the government didn't discriminate in granting it, and it didn't. Moreover, the Knights (not the government) maintains the statute.
Judge Pregerson dissented, arguing that "a twelve-foot tall statute of Jesus situated on government-leased land cannot realistically be looked upon as 'predominantly secular in nature,'" and that "a 'reasonable observer would perceive' the statute situated on government land 'as projecting a message of religious endorsement.'"