‘Holier Than Thou’ Statue Passes Court Muster

A state university art display, which included a statue some argued sent an anti-Catholic message, does not violate the First Amendment, a federal appeals court has ruled.

Since the late 1990s, Washburn University’s Campus Beautification Committee has selected statues for display in temporary outdoor sculpture exhibitions. In 2003, one of the statues caused an uproar on the Topeka, Kan., campus and spurred a professor and student to file a lawsuit arguing that the school had endorsed an anti-Catholic message.

The brouhaha centered on “Holier Than Thou,” a depiction of a Roman Catholic bishop with a contorted facial expression and a miter that some in the community said looked like a penis.

After the university president defended the art exhibit and refused to order its removal, the professor and student filed a lawsuit arguing that the statue’s presence on a public university campus constituted an unconstitutional endorsement of an anti-Catholic message.

A U.S. district court dismissed the lawsuit’s First Amendment argument early last year. On July 28, a three-judge panel of the 10th U.S. Circuit Court of Appeals unanimously upheld the lower court’s decision.

Washburn President Dr. Jerry B. Farley responded to the complaints over the statue by arguing, in part, that “One of the purposes of art is to engage us intellectually and emotionally. This work apparently has fulfilled that function as there is a wide variety of commentary on the piece, ranging from support to opposition.”

The 10th Circuit panel in O’Connor v. Washburn University refused to find the statue’s placement on campus a sign of school-endorsed animus toward religion. Citing U.S. Supreme Court precedent, the appeals court found that the “reasonable observer” would be aware that the statue was one of many in an outdoor art exhibit.