Yet another religious display case, this time from Big Mountain, Montana. For more than 50 years, the Knights of Columbus has maintained a six-foot tall statue, “Big Mountain Jesus,” as a tribute to World War II veterans who told of seeing similar shrines while fighting in Italy. The statue is on public land administered by the US Forest Service. In response to a complaint from the Freedom from Religion Foundation that the statue violates the Establishment Clause, the Forest Service told the Knights the statue could not remain. This decision caused a public outcry, and the Forest Service is now reconsidering. One possible solution is a land swap, in which the Forest Service would give the 25 x 25 foot parcel on which the statue stands to a nearby ski resort in exchange for another piece of real estate.
This dispute is very similar to Salazar v. Buono, the Mojave Desert Cross case from 2010, the last occasion on which the Court addressed religious displays on public property. Salazar involved a Latin cross erected on public land by a private group as part of a war memorial; when lower courts ruled the cross unconstitutional, the government executed a land swap to convey the memorial to private parties. Procedural complications made Salazar rather narrow, though, and it doesn’t give too much guidance here. Quite apart from Salazar, the Court’s jurisprudence on public religious displays is famously unpredictable. Under some versions of the endorsement test, “Big Mountain Jesus” is pretty clearly unconstitutional. But the Court doesn’t always apply the endorsement test, and Justice Kennedy’s plurality opinion in Salazar indicates that even a sectarian display, in the context of a longstanding war memorial, may be constitutional. The Forest Service plans to announce its decision next year.