Group won't appeal Jesus statue case

A statue of Jesus is no longer at risk for possible removal from Whitefish Mountain Resort after a nonprofit group decided not to appeal to the U.S. Supreme Court.

The 9th U.S. Circuit Court of Appeals ruled in September 2015 that the statue could remain on U.S. Forest Service land at the resort. The Freedom From Religion Foundation asked for the case to be re-heard but that request was denied in November 2015.

The group had until this week to appeal to the highest U.S. court.

“There was no point in bringing this to the Supreme Court with a 5-4 block,” Freedom From Religion Foundation Co-President Annie Laurie Gaylor said. “It’s dead in the water.”

In 2012, the Freedom From Religion Foundation filed suit against the Forest Service and Knights of Columbus in federal court and asked that the statue be removed because it allegedly violated the First Amendment right to separation of church and state. The statue has been on the property for nearly 60 years.

The foundation had filed a complaint about the statue to the Flathead National Forest a year earlier. The permit renewal for the statue originally was denied but Forest Supervisor Chip Weber reversed his decision after 95,000 public comments were received.

In 2013, U.S. District Court Judge Dana Christensen in Missoula determined that the statue’s placement was legal. The shrine was erected by the Knight of Columbus with a special use permit from the Forest Service.

Christensen found that the statue doesn’t represent a government’s endorsement of religion because a private business leases the land and a private organization raised the statue.

Gaylor feels differently and believes that the 9th Circuit judges ruled against her group because they knew the higher court would overturn the ruling.

“No one wants to be overturned by the Supreme Court,” Gaylor said.

The postponement of the appointment of a new Supreme Court justice to replace the recently deceased Antonin Scalia has left much up in the air for Gaylor’s foundation. She said the group recently filed one lawsuit that it would not have filed prior to Scalia’s death. She hopes that the court will swing in the opposite direction in the coming years, but it will do nothing for the statue lawsuit.

“It’s just an injustice,” Gaylor said. “All we wanted the government to do is give the shrine of Jesus back to the Knights of Columbus so it could be displayed on their own property where it belongs.”

Gaylor pointed out that the Big Mountain Jesus case was the only one of six major lawsuits last year that her organization lost. Through settlement or court order, the group prevailed in cases that did away with kindergarten prayer in Georgia and got the 10 Commandments removed from a junior high school in Pennsylvania, among others.

Matthew Clark, senior counsel for the American Center for Law and Justice, said his organization and the Freedom from Religion Foundation are often at odds in court over whether or not religious symbols and phrases should be allowed by the government.

The American Center for Law and Justice filed briefs in support of the U.S. Forest Service and Knights of Columbus in the statue case. Clark said the statue was put in place after soldiers returning home from World War II battles wanted to erect a memorial similar to Christian statues they had seen on the hillsides of Europe.

“When they want to honor our fallen soldiers, they should not be disallowed from doing so just because that message happens to be one that includes religion,” Clark said.

Kalispell City Attorney Charlie Harball offered pro bono legal assistance that helped the local Knights of Columbus chapter link into powerful legal resources to defend the statue. Harball said the history of the statue was not religious and resulted after Ed Schenck, one of the ski resort founders, saw similar statues on European mountainsides during his service in the Alps during World War II.

“They saw a lot of these statues all over in Europe and he was very impressed by that,” Harball said. “That was his memorial to his friends.”

Harball said it is vindicating to see the end of the lawsuit.

“I don’t think anyone really felt it was a real viable case anyway,” Harball said.

Reporter Megan Strickland can be reached at 758-4459 or mstrickland@dailyinterlake.com.