Freedom From Religion Foundation, Inc. v. Weber

MEMORANDUM *

Freedom From Religion Foundation, Inc. (“FFRF”) appeals from the district court’s award of summary judgment to the United States Forest Service (“USFS”) and Knights of Columbus (“Knights”). The district court held that the government’s continued authorization of a Jesus Christ statue located on national forest land did not violate the Establishment Clause. Because the parties are familiar with the facts, we do not recount them except as necessary. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

FFRF satisfied the three organizational standing requirements. See Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 , 97 S.Ct. 2434 , 53 L.Ed.2d 383 (1977). First, FFRF-member Pamela Morris would be able to sue in her own right; she “made a conscious effort to avoid Big Mountain because of the Jesus Statue,” which she found “intrusive” and “out of place.” See Hewitt v. Joyner, 940 F.2d 1561, 1564 (9th Cir.1991) (standing to contest religious displays where displays curtailed plaintiffs’ use of park); Buono v. Norton, 371 F.3d 543, 546-48 (9th Cir. 2004) (alleged injury was sufficient where plaintiff was “unable to ‘freely us[e]’ the area of the Preserve…

concurring:

Given the assumption made by both the majority and the dissent — that the Forest Service’s action (the renewal of a special use permit) constituted government action that could violate the Establishment Clause — I agree with the majority. Under both the Lemon and Van Orden tests, the Forest Service did not violate the Establishment Clause. However, I write separately, because the assumption is incorrect. The Forest Service’s renewal of a special use permit for an existing monument does not constitute government speech.

“There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” Bd. of Educ. of Westside Cmty. Schs. v. Mergens, 496 U.S. 226, 250 , 110 S.Ct. 2356 , 110 L.Ed.2d 191 (1990). When a private speaker utilizes public property as a forum for expression, government allowance of that expression does not violate the Establishment Clause as long as the expression is permitted in a “non-discriminatory manner.” See Kreisner v. City of San Diego, 1 F.3d 775, 776 (9th Cir.1993). In short, “[rjeligious expression…

dissenting:

The First Amendment freedom of religion clauses serve “to assure the fullest possible scope of religious liberty and tolerance for all[,] ... to avoid that divisiveness based upon religion that promotes social conflict!, and] ... to maintain that separation of church and state that has long been critical to the peaceful dominion that religion exercises in this country.” Trunk v. City of San Diego, 629 F.3d 1099, 1110 (9th Cir.2011) (citing Van Orden v. Perry, 545 U.S. 677, 678 , 125 S.Ct. 2854 , 162 L.Ed.2d 607 (2005)).

First, despite arguments to the contrary, a twelve-foot tall statue of Jesus situated on government-leased land cannot realistically be looked upon as “predominantly secular in nature.” Id. at 1107.

Second, to determine the effect of the statue we ask whether “it would be objectively reasonable for the government action to be construed as sending primarily a message of either endorsement or disapproval of religion.” Id. at T109 (quoting Vernon v. City of Los Angeles, 27 F.3d 1385, 1398 (9th Cir.1994)). I submit that a “reasonable observer would perceive” the statue situated on government land “as projecting a message of religious endorsement.” Id. at…

FILED

NOT FOR PUBLICATION

AUG 31 2015

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FREEDOM FROM RELIGION No. 13-35770 FOUNDATION, INC., a Wisconsin non- profit corporation, D.C. No. 9:12-cv-00019-DLC

Plaintiff - Appellant,

MEMORANDUM*

v.

CHIP WEBER, Flathead National Forest Supervisor and UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture,

Defendants - Appellees,

WILLIAM R. GLIDDEN; et al.,

Intervenor-Defendants - Appellees.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, Chief District Judge, Presiding

Argued and Submitted July 7, 2015 Portland, Oregon

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Before: PREGERSON, N.R. SMITH, and OWENS, Circuit Judges.

Freedom From Religion Foundation, Inc. (“FFRF”) appeals from the district

court’s award of summary judgment to the United States Forest Service (“USFS”)

and Knights of Columbus (“Knights”). The district court held that the

government’s…