CASE UPDATE: Defending a WWII Heroes’ Memorial in Federal Appeals Court

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ACLJ.org

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July 9, 2015

4 min read

American Heritage

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Yesterday, a federal appeals court heard oral argument in a critical case we have been involved in to defend a historic war memorial from an angry atheist attack.

When World War II veterans returned from fighting in Italy, they wanted to memorialize their brothers-in-arms who didn’t return home. Inspired by the mountain shrines they saw abroad, the Knights of Columbus built a statue of Jesus as part of a WWII memorial on a mountain in Montana.

Predictably, the radical anti-Christian Freedom From Religion Foundation (FFRF) challenged the statue in court more than 50 years after it was built.

As ACLJ Chief Counsel Jay Sekulow previously reported:

The history and heritage of our nation should not create a constitutional crisis. The lawsuit challenging this memorial was deeply flawed from the start and a federal court correctly dismissed it last summer. Now, the atheist organization is appealing. This is nothing but another attempt to manipulate the constitution. The fact is – this memorial honoring the men and women of WWII – is not only an integral part of the history and heritage of this area, but is without question constitutional. We’re hopeful the appeals court will make that determination as well.

In June 2013, a federal district court dismissed the suit filed by the Freedom From Religion Foundation (FFRF) – concluding the memorial did not violate the Establishment Clause of the First Amendment.

The atheist group filed suit calling the memorial “a ruse and a sham” and demanding the National Forest Service remove the display. A federal judge rejected that argument by concluding that “The statue does not convey to a reasonable informed observer that the government, rather than a private party, endorses Christianity over any other faith or the absence of faith.” The judge added: “[T]he Court finds that the renewal of the Special Use Permit does not constitute a government endorsement of a religious message and thus does not violate the Establishment Clause.”

We filed an amicus brief urging the U.S. Court of Appeals for the Ninth Circuit to uphold the district court dismissal.  Our brief was filed on behalf of 20 Members of the One Hundred Thirteenth Congress (Steve Daines, J. Randy Forbes, Senator James Inhofe, Michele Bachmann, Jeff Duncan, Virginia Foxx, Gregg Harper, Vicky Hartzler, Tim Huelskamp, Bill Johnson, Walter Jones, Mike Kelly, Steve King, John Kline, James Lankford, Jeff Miller, Joe Pitts, Mike Pompeo, Lynn Westmoreland, and Robert Pittman), the ACLJ, and nearly 115,000 concerned Americans supporting veterans’ memorials and our country’s rich history and heritage that includes religious symbolism.

Yesterday, during oral arguments, at least one of the three judges on the panel seemed skeptical of the Freedom From Religion Foundation’s dubious arguments.

The Associated Press has more details:

Bolton [the FFRF attorney] came under sharp questioning from one of the judges, N. Randy Smith, who seemed skeptical of whether the Wisconsin-based Freedom From Religion Foundation has standing in the case. He asked Bolton which particular member of the group has been harmed by the Forest Service’s decision.

Bolton answered that a Montana-based foundation member, Pamela Morris, would like to ski at Big Mountain but has avoided it for decades since encountering the Jesus statue as a teenager.

Smith countered that the statue is only visible from a small portion of the resort and it’s possible to ski all day without seeing it.

“In other words, there’s no reason to even avoid it,” the judge said. “She has to go specifically looking for it.”

“That’s not true, your honor,” Bolton said.

“Well, that’s what the evidence says,” Smith replied. […]

U.S. Justice Department attorney Joan Pepin said the Forest Service acted with neutrality and approved the permit because the statue has local historical significance.

The ACLJ will continue to defend war memorials and our nation’s rich religious heritage. Thank you for your continued support.