Two years ago, as part of its eighth annual outdoor sculpture exhibit, Washburn University placed in a prominent spot on its Topeka, Kan., campus a statue of what appeared to be a Roman Catholic cardinal. The artist who created Holier Than Thou, as it was titled, said it portrayed what he remembered seeing when he went into a confessional booth for the first time at the age of seven: a potent and scary figure "who had the power to condemn me for my evil ways."
What the artist intended as an ironic recollection of childhood memory struck others as egregiously anti-Catholic. They took offense at the holy man's contorted expression and contended that the miter atop his head resembled a penis. A photograph of the statue quickly made the rounds of conservative Catholic sites on the Internet, and Catholics near and far, including the local archdiocese, asked Washburn officials to take the statue down. The university did not, and in October 2003, one professor and one then-student at Washburn sued the public institution, charging that it had violated the Establishment Clause of the U.S. Constitution by engaging in state-sponsored disapproval of their religious beliefs.
Thursday, a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit ruled that the university had done no wrong. In its written opinion, the court avoided weighing in on whether the statue's content presents a state-sponsored anti-Catholic message; what's important, the appeals panel ruled, is that "any reasonable observer viewing it in context would understand the university had not endorsed that message."
To reach that conclusion, the court analyzed whether, in choosing to display the sculpture and in continuing to display it even after objections were raised, the university sought to "denigrate the Roman Catholic religion."
The court found that neither the jury that recommended the statue nor Washburn's Campus Beautification Committee, which ultimately selected the five pieces to be in that year's exhibit, considered anything but the artistic quality of the work. In deciding to keep displaying the statue after the initial protests, the court concluded, Washburn's president and its Board of Regents had cited a desire to "promote freedom of speech and to avoid academic censorship."
It added: "There is no evidence in the record showing that the university's decision to retain the statue was based on improper motives. Instead, the evidence shows that the university chose to keep the statue for reasons unrelated to a disapproval of Catholicism."
Further, the appeals panel concluded that nothing in the Constitution's Establishment Clause bars a public university -- a place that is "peculiarly the marketplace of ideas" -- from dealing with religious themes. "In the university setting," it said, citing a 1995 Supreme Court case known as Rosenberger v. Rectors and Visitors of the University of Virginia, " 'the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition.' "
Officials at the Thomas More Law Center, a nonprofit legal group that represented the former professor, Thomas O'Connor, and former student, Andrew Strobl, who sued Washburn, could not be reached for comment on the case Friday. It was not clear whether they would seek to appeal the ruling to the U.S. Supreme Court.
Washburn officials said Friday that they were gratified by the court's ruling. David Monical, executive director for university relations, said that the controversy had not altered the standards the institution uses to choose art works for the annual sculpture show. "You cannot be, in selecting art, all things to all people," said Monical. "And you can't be overly concerned that some may interpret a piece differently from others." But he said that the "awareness of the controversy" has probably made those responsible for selecting the art works "informally a little bit more sensitive to how others may view a piece."
The university is in the process of reviewing submissions for its 10th annual outdoor sculpture exhibit.
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