Although Big Mountain Jesus stands atop a private ski area, the ski area's land is leased from the U.S. Forest Service. Every ten years, the Knights of Columbus seek a permit for the statue to remain situated. According to FFRF, a statue of Jesus on public lands violates the Establishment Clause of the First Amendment to the U.S. Constitution, which mandates government neutrality between individual religions as well as between religion and non-religion.
In June 2013 the U.S. District Court for Montana issued a decision upholding the Forest Service's decision to again approve the Big Mountain Jesus permit. Acknowledging intense political pressure and involvement from the National Register of Historic Places in favor of reissuing the permit, but dismissing that pressure as a basis for its decision, the court held that the continued presence of Big Mountain Jesus was not a Constitutional violation. The court relied on the principal that not all religious symbols run afoul of the Establishment Clause. To the extent that the statue may have had religious significance, the court found that over the course of the last 60 years the statue had become a historic landmark and curiosity more secular in nature. Ultimately, the court held that the U.S. Forest Service's discrete act of issuing a permit did not reflect governmental endorsement of any religious sect. Further, the court reasoned that because the government neither owns the statue nor controls the land it stands on, Big Mountain Jesus was more aptly considered private speech by its owners that cannot reasonably be interpreted to reflect government promotion of religion.
FFRF recently appealed that decision to the Ninth Circuit Court of Appeals. The matter is scheduled to be fully briefed by January 2014.
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