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Holier Than Thou

Holier Than Thou (bronze sculpture)
by Jerry Boyle

The Issue:   Religious Freedom and Artistic Expression
In addition to prohibiting laws that abridge freedom of speech, the First Amendment to the United States Constitution bars laws “respecting an establishment of religion.” Referred to as the “establishment clause,” the U.S. Supreme Court has interpreted this provision as prohibiting the government from endorsing one religion over another, or even endorsing religion over no religion. Unfortunately, this mandate is easier to state than practice when it comes to artistic expression. For example, in a government sponsored art exhibit, does the establishment clause prohibit the entry of any and all works with a religious theme, or does the exclusion of such works violate the free speech rights of artists? Courts.
Washburn University is a public institution located in Topeka, Kansas. Each year the University sponsors an outdoor sculpture contest. Once selected, the winning entries are displayed around campus for several months. One of the 5 winning entries for the 2003 contest was a sculpture by artist Jerry Boyle. Entitled Holier Than Thou, the work shows the upper body of a clergyman wearing a miter, the tall hat commonly worn by Catholic popes. Controversy erupted soon after the sculpture was placed on the Washburn campus. Critics contended that the clergyman was portrayed with a grotesque facial expression and that the ceremonial hat he wore resembled a phallus. The statue so greatly offended a Washburn professor and student that they filed a lawsuit in federal court demanding the removal of the statue. The two plaintiffs alleged that the statue conveyed an impermissible state-sponsored message of disapproval of the Catholic faith and religion.
The Tenth Circuit Court of Appeals disagreed. The court concluded that neither the purpose nor the effect of displaying the sculpture was to spread an anti-Catholic sentiment. The court went on to say that, viewed in context with the other sculptures displayed on campus, “any reasonable observer… would understand the university had not endorsed that message.”