District Court Rules in Favor of Big Mountain Jesus

Image from the Flathead Beacon

An update on a story we’ve been following: Yesterday, a federal district court ruled that the US Forest Service did not violate the Establishment Clause by renewing a permit for “Big Mountain Jesus” (left), a six-foot-tall statue on land the Service leases to a private ski resort in Big Mountain, Montana. The statue has been in place since 1954, when the Knights of Columbus donated it–though this part is a matter of some dispute–as a war memorial. In response to an objection from the Freedom From Religion Foundation (FFRF), the Service decided not to renew the statue’s permit in 2011. This decision led to public outcry–the service received 95,000 comments in less than two months–and the Service reversed itself, whereupon the FFRF sued.

Under current Supreme Court precedent, official display of a religious symbol violates the Establishment Clause if a reasonable observer would think that the government is endorsing a religious message. In yesterday’s opinion, the court ruled that a reasonable observer would not perceive an official endorsement of religion in the case of Big Mountain Jesus. The statue is on land the government leases to a private owner and is maintained by a private organization–facts an inscription on the statue’s base explains. Many observers would be unaware of any governmental involvement at all. Moreover, although a statue of Jesus is obviously a Christian symbol, the secular, even irreverent associations of this particular statue minimize any religious message. At least some people think of the statue as a war memorial. Some people value the statue’s historical significance. And most observers, the court suggested, see the statue as a kind of campy joke: “Typical observers of the statue are more interested in giving it a high five or adorning it in ski gear than sitting before it in prayer.”

It’s unfortunate that current doctrine favors the trivialization of a religious symbol as evidence of its constitutionality, but that’s where we are. (Remember the candy canes and reindeer around the creche?) The court also noted that Big Mountain Jesus had been around for about 60 years before anyone had thought to object. This, too, is an important factor under Supreme Court precedent: “longevity demonstrates that ‘few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect.'”

The Becket Fund for Religious Liberty, which intervened in the case on behalf of the Knights of Columbus and other parties, has a press release about the case here. The FFRF says it will likely appeal.

CLR Faculty at Annual Law and Religion Roundtable

This week, CLR Director Mark Movsesian and Associate Director Marc DeGirolami will participate in the Annual Law and Religion Roundtable, hosted this year at Stanford Law School. Now in its fourth year, the  ALRR “provides a forum for scholars of religious freedom to share cutting-edge works and engage in discipline-shaping conversations.” Movsesian will present an early-stage project on the Psychic Sophie case and the rise of the Nones. DeGirolami will participate in the meeting as a discussant.

Supreme Court to Hear Abortion Protest Restriction Case

The Supreme Court has granted certiorari in McCullen v. Coakley, a case out of Massachusetts involving a free speech challenge to a law that makes it a crime for speakers other than clinic “employees or agents…acting within the scope of their employment” “to enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of a “reproductive health care facility.” The Court’s decision in Hill v. Colorado (2000) is also arguably in play. In Hill, the Court (6-3) upheld a Colorado statute making it unlawful for a person within 100 feet of an abortion clinic entrance to “knowingly approach” within 8 feet of another person, without that person’s consent, in order to pass leaflets, display signs, or engage in oral protests, education, or counseling of that person.

See this post and the linked amicus brief authored by our friend and CLR Forum former guest Kevin Walsh for argument about how the Court could strike down the Massachusetts law in McCullen without overturning (or even disturbing the core holding of) Hill.

Bayir, “Minorities and Nationalism in Turkish Law”

As Walter Russell Mead notes, the recent falling-out between Germany and Turkey over Turkey’s accession to the EU confirms what Samuel Huntington wrote in the 1990s: Deep civilizational divides continue to exist and are impossible to ignore. Notwithstanding Kemalist dreams of transformation, Muslim-majority Turkey and liberal, secularist Europe represent different ways of being. It was never clear how the two could successfully merge in one political entity. Under Erdogan’s AKP, the marriage seems further away than ever.

A recent book from Ashgate, Minorities and Nationalism in Turkish Law, seems like it would provide helpful background to today’s events. The author, Derya Bayir, is a lawyer who specializes in international human rights and the Turkish legal system. Here’s the publisher’s abstract:

Examining the on-going dilemma of the management of diversity in Turkey from a historical and legal perspective, this book argues that the state’s failure to accommodate ethno-religious diversity is attributable to the founding philosophy of Turkish nationalism and its heavy penetration into the socio-political and legal fibre of the country. It examines the articulation and influence of the founding principle in law and in the higher courts’ jurisprudence in relation to the concepts of nation, citizenship, and minorities. In so doing, it adopts a sceptical approach to the claim that Turkey has a civic nationalist state, not least on the grounds that the legal system is generously littered by references to the Turkish ethnie and to Sunni Islam. Also arguing that the nationalist stance of the Turkish state and legal system has created a legal discourse which is at odds with the justification of minority protection given in international law, this book demonstrates that a reconstruction of the founding philosophy of the state and the legal system is necessary, without which any solution to the dilemmas of managing diversity would be inadequate. Adopting an interdisciplinary approach, this timely book will interest those engaged in the fields of Middle Eastern, Islamic, Ottoman and Turkish studies, as well as those working on human rights and international law and nationalism.