A Montana federal judge has ruled that the Knights of Columbus, a Catholic charitable organization, may intervene in a lawsuit over the removal of a statue of Jesus from Whitefish Mountain, MT. The court held that the KOC, who installed the monument in 1955 and have been its custodians ever since, have a protectable interest in the lawsuit by virtue of the special use permit they hold for the statute. Consequently, the court held they may intervene.
The dispute centers on a statue of Jesus (colloquially known as the "Montana Jesus Statue") located on federal land in the Flathead National Forest. The land is leased to Whitefish Mountain ski resort and the statue is located beside a ski run near the resort's Chair Two. The statue has been in place for almost 60 years and was dedicated to the memory soldiers of the Army's 10th Mountain Division - the infantry's elite "ski troops" - who had died in the Second World War.
Based on current precedent, Ski, Esq. believes that the court should allow the statue to remain. In a strikingly similar case, Pleasant Grove City v. Summum, 555 U.S 460 (2009), a religious organization (Summum) wanted to force a Utah town to put a statue to its religion alongside Christian statues in a municipal park. In an unanimous decision upholding the town's right to choose the monuments it placed in the park, the US Supreme Court held that "the placement of a permanent monument in a public park is a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause." In other words, when the government chooses to speak - in this case by accepting donations of monuments to honor community values and traditions - the Free Speech Clause is not implicated. As the court put it, the Free Speech Clause "restricts government regulation of private speech, but not government speech." The federal government has similarly accepted the donation of the statue at Whitefish Mountain.
However, in addition to the Free Speech Clause, the First Amendment also has an Establishment Clause. The Establishment Clause was included in the First Amendment as a reaction against the colonists' dislike of the state-sponsored (and funded) Church of England. The facts in the instant case are analogous to those in Pleasant Grove; the only difference is the theory advanced by the plaintiffs - the Establishment Clause as opposed to the Free Speech Clause. Although the court did not decide Pleasant Grove under the Establishment Clause, the court clearly understood the case was, as Justice Scalia wrote in his concurring opinion, "litigated in the shadow...of the Establishment Clause."
Scalia's concurrence was clearly aimed at building consensus for a subsequent decision that government speech like the placement of religious themed memorials would not violate the Establishment Clause. He sought to avoid throwing the plaintiff from "Free Speech Clause frying pan into the Establishment Clause fire." In his opinion he pointed to decisions by other justices where they have permitted similar public displays of religion, most notably an opinion by Justice Breyer in which he concurred with the court's decision to permit a statue of the Ten Commandments to remain in a park near the Texas statehouse. Van Orden v. Perry, 545 U.S. 677 (2005).
A decision against the KOC would also present practical problems given the large number of religious symbols on other public war memorials. For example, would the government be forced to remove crosses, Stars of David, and crescent moons from military cemeteries? The court will likely bend over backwards to prevent that result, as evidenced by Justice Breyer's concurrence in Van Orden, in which he asserted that the length of time a monument had been in place unchallenged weighed in favor of allowing it to remain and that even an overly religious symbol like the Ten Commandments could have secular meaning.
However, Ski, Esq. believes the most likely outcome is a land swap, where the federal government trades the land underlying the statue for private land elsewhere in or near the park. This Court recently permitted such a swap in case involving a war memorial cross on federal land in Arizona. Salazar v. Buono, 559 U.S. ___ (2010). In Buono, too, the court found the overtly religious symbols could have secular meaning in the context of a war memorial. The KOC's Whitefish Mountain memorial to the 10th Mountain Division should also be allowed to stand.
The case is Freedom From Religion Foundation v. Weber. (Chip Weber is Forest Supervisor for the Flathead National Forest)