Thursday, March 09, 2006

The Law/Sex Nexus Continues

with a decision out of the Supreme Court (registration required - use username=Mypassword / password=password) not to hear an appeal on a Tenth Circuit case ruling a state university can display a statue with an arguably anti-religious message without violating the Establishment Clause.

Surprisingly, it's not the Muslims causing the fuss this time around, but the Catholics. They were somewhat offended by a depiction of "a bishop with a grotesque expression, a representation of a phallus on his head, and the title 'Holier Than Thou.'"

They made an interesting reverse-establishment clause arugument, alleging that erecting (okay, it's not a pun people) a statute with an arguably anti-Catholic message operates as a disapproval of one religion (Catholicism), thereby implicitly legitimizing other belief systems. Creative. So the Tenth Circuit did the standard semi-Lemon analysis to determine whether the statue (1) had a secular purpose, (2) did not have the principal or primary effect of advancing or inhibiting religion, and (3) did not foster an excessive entanglement with religion.

Washburn argued its decision to display Holier Than Thou was motivated by two purposes: 1) to enhance the university’s educational experience, and 2) to beautify the campus. They also claimed nobody thought of the hat as a phallic symbol until student uproar brought it to their attention. If that's the case, I'd have to say it's time to expand their education, an average class of junior high boys could've pointed it out to them inside of two minutes. But the Court let that one slide, finding there was no evidence the school had any religiously motivated reason for displaying the statue in question. In a counter-argument, the plaintiffs basically called the religious implications obvious, but then claimed that the decision to retain the statute in light of the controversy could be used as evidence of an anti-Catholic purpose. The school claimed that decision was not engendered from any anti-religious sentiment, and the Court agreed, noting that the meeting minutes of the Board of Regents disclosed their decision was based on a desire to promote freedom of speech and to avoid academic censorship.

Regarding the potential of the statute to create an anti-Catholic effect, the Tenth Circuit had this to say:
The reasonable observer of Holier Than Thou would . . . be aware that the statue was one of thirty outdoor sculptures displayed on the Washburn campus, of which several were located within sight of the challenged display. In addition, the existence of a brochure available in the campus art museum describing and mapping all the statues on campus would make it clear to a reasonable observer that the statues were part of a unified exhibit. The reasonable observer would also be aware that art in previous years had been placed at the location of Holier Than Thou, and that previous exhibitions had included at least one statue with religious symbolism. Viewed in the context of these other statues, Holier Than Thou was part of a “typical museum setting” that, “though not neutralizing the religious content of a religious [work of art], negates any message of endorsement of that content.” Lynch, 465 U.S. at 692 (O’Connor, J., concurring). A state is not prohibited from displaying art that may contain religious or anti-religious symbols in a museum setting. . . .

Like music, sculpture has traditionally involved works with religious themes. This fact, combined with the Campus Beautification Committee’s selection for the exhibition of four sculptures without obvious religious symbolism, would similarly lead the reasonable observer to conclude that the state did not intend to endorse a particular religious message. . . .

Furthermore, Holier Than Thou was displayed in the context of a university campus, a place that is “peculiarly the marketplace of ideas.”. . . In the university setting, “the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition.” . . . As the Supreme Court recognized in Rosenberger, purging religious or anti- religious speech from a university setting would eliminate such speakers as Plato, Spinoza, Descartes, Karl Marx, Bertrand Russell, and Jean-Paul Sartre from the curriculum. . . . The Establishment Clause, however, does not compel the removal of religious themes from public education. Although the Court in School District of Abington Township v. Schempp held unconstitutional a state statute requiring daily Bible readings in public schools, the Court noted it did not intend to “indicat[e] that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.”. . . Regardless of whether the statue sends an anti-Catholic message, any reasonable observer viewing it in context would understand the university had not endorsed that message.

They appeared to skate over the whole "entanglement" prong, which of itself isn't problematic, since the whole Establishment clause analysis now appears to be a random Lemon-like grab bag of tests tailored to fit the facts of each case, basically guaranteeing these cases will be around to entertain us for years to come.

Oh, and buried in the opinion is also the alternative explanation for the statute. It isn't a sex thing, it's a representation of the artist’s humorous memories of his first confession, as explained in the caption:
The artist says, “I was brought up Catholic. I remember being 7 and going into the dark confessional booth for the first time. I knelt down, and my face was only inches from the thin screen that separated me and the one who had the power to condemn me for my evil ways. I was scared to death, for on the other side of that screen was the persona you see before you.”

In other words: a) Read the captions - an education is a good thing; and b) Buy a sense of humor. Please.

Though the hat still looks fairly phallic to me.

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