In O’Connor v. Washburn University, the Tenth Circuit Court of Appeal held that Washburn University, a municipal university in Topeka, Kansas, that is funded by city and county taxes, did not have to remove a statue many Catholics found offensive. The statue, entitled Holier Than Thou, was part of a temporary outdoor sculpture exhibition and depicted a Catholic bishop who was arguably wearing a contorted expression and a miter in the shape of a phallus. The artist’s caption on the statue read, "I was brought up Catholic. I remember being seven and going into the dark confessional booth for the first time. I knelt down, and my face was only inches from the thin metal 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."
A professor, who has since retired, and a student sued the University claiming the statue’s display violated the Establishment Clause. Ultimately, the Tenth Circuit held that the statue did not fail the three-part test laid out by the U.S. Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), which states that government action does not violate the Establishment Clause so long as it (1) has a secular purpose; (2) does not have the principal or primary effect of advancing or inhibiting religion; and (3) does not foster an excessive entanglement, as modified, by Justice O’Connor’s "endorsement test." The endorsement test states that the government impermissibly endorses religion if its conduct has either the purpose, or the effect of conveying a message that religion or a particular religious belief is favored or preferred.
In doing so, the Tenth Circuit focused on the purpose of the statue. In determining that the statue had a secular purpose, the Court examined the University’s explanation of the reasons for the selection of the statue for display by a campus beautification committee, the actual display of the statue and the decision of the University to retain the statue after receiving complaints.
The Court emphasized that a campus beautification committee selected the statue without a discussion of any potential anti-Catholic message. The Court also noted that, according to the University, the campus beautification committee felt that the statue had two legitimate purposes: (1) to enhance the University’s educational experience, and (2) to beautify the campus. The professor and student argued that campus beautification was not a sufficient secular purpose to withstand a challenge under the Establishment Clause. The Court dismissed that argument saying "at least when there is no evidence of improper motive, campus beautification is a permissible justification for displaying a work of art." Additionally, the Court noted that the professor and student failed to provide any evidence that the school chose the statue out of hostility toward the Catholic faith.
Next, the Court reviewed the statue’s display at a prominent location on campus apart from all other statues and close to two prominent walkways on campus. The Court relied on the University’s explanation that it chose the site because the statue’s fine details could best be appreciated up close.
Finally, the Court determined that there was no improper purpose in the University’s decision to continue displaying the statue after receiving numerous complaints from offended Catholics. The Court found that there was no evidence that the University chose to retain the statue for the purpose of denigrating the Catholic religion.
In its analysis of the effect of the statue, the Court focused on the point of view of the reasonable observer. The Court emphasized that a reasonable observer who was aware of the history and context of the community and forum in which Holier Than Thou appeared would not believe the University endorsed the message of the statue.
Additionally, the Court noted that not every government-sanctioned activity must be unrelated to religion. The Court also stated that the statue appeared in a "museum-setting," a setting in which a state is not prohibited from displaying art that may contain religious or anti-religious symbols. Moreover, the Court noted that a university campus is a "marketplace of ideas" that is "at the center of our intellectual and philosophic tradition."
In summary, the Tenth Circuit relied on the University’s explanations to determine that the statue did not have an improper purpose and then found that the statue had no improper effect on reasonable observers.
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