The Holy Virgin Mary

The Holy Virgin Mary
Chris Ofili

The Issue:   Public Funding for the Arts

Nothing in the U.S. Constitution requires the government to spend taxpayer dollars to fund artistic expression. If the government chooses to fund the arts, however, it must do so in a manner consistent with the First Amendment, i.e. funding decisions cannot be based on whether the government agrees with the message being expressed in the art.

Yet government funds are not infinite; obviously, every request for arts funding cannot be granted. As such, government agencies must have some discretion in choosing where and how to allocate funds for the arts.

A signature feature of artist Chris Ofili’s work is the use of natural substances. In his portrait The Holy Virgin Mary, the natural substance was elephant dung. The painting was one piece in the Brooklyn Museum of Art’s display of Sensation, a multi-artist exhibition of works drawn from a private collection. New York City Mayor Rudolph Guilliani derided the exhibition as “sick stuff,” taking particular offense at Ofili’s The Holy Virgin Mary. Although no public monies were used to fund Sensation, Mayor Guilliani called for withholding funds designated for the museum’s operating expenses and maintenance, as well as evicting it from the city-owned building it leased unless the exhibition was cancelled.

Was the Holy Virgin Mary protected?

Indirectly, yes. In Brooklyn Institute of Arts and Sciences v. City of New York, the federal district court in New York issued a preliminary injunction temporarily preventing the City from taking any action against the museum. The Court believed that when the case was fully litigated, it was likely that that City’s proposed actions of withholding funds and evicting the museum would be seen as an unconstitutional attempt to control the content of the museum’s exhibitions. Six months of legal negotiations culminated in an agreement by the City to repay the withheld funds, as well as another $5.8 million for refurbishment to the museum.


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