[T]he government’s continued authorization of the [Big Mountain Jesus] statue on federal land does not violate the Establishment Clause. [Footnote: Our analysis assumes, without deciding, that [the U.S. Forest Service’s] continued authorization of the statue on public land constitutes government action.
First, USFS’s decision to renew the statue’s permit reflected a primarily secular purpose. The government identified secular rationales for its continued authorization including the statue’s cultural and historical significance for veterans, Montanans, and tourists; the statue’s inclusion in the National Register of Historic Places; and the government’s intent to preserve the site “as a historic part of the resort.” See Access Fund v. U.S. Dep’t of Agric., 499 F.3d 1036, 1043 (9th Cir. 2007) (site’s inclusion in the National Register of Historical Places evinces Forest Service’s secular motivations — “the preservation of a historic cultural area”); Kreisner v. City of San Diego, 1 F.3d 775, 782 (9th Cir. 1993) (“A reviewing court must be ‘reluctant to attribute unconstitutional motives’ to government actors in the face of a plausible secular purpose.”).
Although the dissent focuses on the monument’s appearance, that the statue is of a religious figure, and that some of the initial impetus for the statue’s placement was religiously motivated, does not end the matter. See Van Orden v. Perry, 545 U.S. 677, 699 (2005) (Breyer, J., concurring in the judgment) (“[T]he Establishment Clause does not compel the government to purge from the public sphere all that in any way partakes of the religious.”). USFS’s “intent is the key here, and nothing apart from the [statue’s likeness] suggests a religious motive on [USFS’s] part.”
Second, USFS’s permit authorization did not constitute an endorsement of religion. Our determination is based on the following: (1) there is nothing in the statue’s display or setting to suggest government endorsement; the twelve-foot tall statue is on a mountain, far from any government seat or building, near a commercial ski resort, and accessible only to individuals who pay to use the ski lift; (2) the statue’s plaque communicates that it is privately owned and maintained — “it did not sprout from the minds of [government] officials and was not funded from [the government’s] coffers”; (3) besides the statue’s likeness, there is nothing in the display or setting to suggest a religious message. The mountain’s role as a summer and winter tourist destination used for skiing, hiking, biking, berry-picking, and site-seeing suggests a secular context; the location “does not readily lend itself to meditation or any other religious activity,” and the setting “suggests little or nothing of the sacred,” Van Orden, 545 U.S. at 702 (Breyer, J., concurring in the judgment); (4) the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in mardi gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures; (5) local residents commonly perceived the statue as a meeting place, local landmark, and important aspect of the mountain’s history as a ski area and tourist destination; and, (6) there is an absence of complaints throughout its sixty-year history, see Van Orden, 545 U.S. at 702 (Breyer, J., concurring in the judgment) (reasoning that the monument’s forty-year unchallenged history “suggest[s] more strongly than can any set of formulaic tests that few individuals … are likely to have understood the monument as amounting … to a government effort to favor a particular religious sect, … to ‘compel’ any ‘religious practic[e],’ or to ‘work deterrence’ of any ‘religious belief’” (alterations in original)).
Finally, the facts of this case are not commensurate with [the] facts in [Trunk v. City of San Diego, 629 F.3d 1099 (9th Cir. 2011)]: (1) the forty-three foot tall cross in Trunk was “visible from miles away and tower[ed] over the thousands of drivers who travel[ed] daily on Interstate 5”; (2) the cross’s plaque, identifying it as a war memorial, was added only after litigation began; (3) for the majority of its history, the cross was not, in fact, a war memorial, but a religious symbol and a place where Easter services continued for more than forty years; (4) the memorial’s location “in the heart of a largely homogenous and exclusionary community” had a “history of anti-Semitism that reinforce[d] the Memorial’s sectarian effect”; and, (5) at least for the last two decades, the cross had “become a flashpoint of secular and religious divisiveness,” and “heated litigation.” …