Phallus-head bishops and the Establishment Clause

It will be interesting to see why kind of blog-traffic the title of this post attracts.  In any event, here is a link to the Tenth Circuit's opinion in O'Connor v. Washburn U.  Here are (some of) the facts:

Since 1996, Washburn's Campus Beautification Committee has selected approximately five statues each year for display in a temporary outdoor sculpture exhibition. The exhibition supplements the university's collection of twenty-five outdoor statues permanently situated on campus. President Farley appoints the members of the committee from the local community and from Washburn's faculty and staff. For the 2003 exhibition, the committee chose a three-member volunteer jury made up of art professionals to select works for display. The jury chose five sculptures from among the ninety submissions received.

One of the chosen statues, entitled Holier Than Thou, depicts a Roman Catholic bishop with a contorted facial expression and a miter that some have interpreted as a stylized representation of a phallus. The bronze statue measures thirty-seven inches high by twenty-seven inches wide and is inscribed with the words, "The Cardinal." Its caption reads:

The artist says, "I was brought up Catholic. I remember being 7 and going into the dark confessional booth for the first time. I knelt down, and my face was only inches from the thin 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."

After some complaints, "the Campus Beautification Committee called a special meeting to discuss the issue. During the meeting, committee members stated that they had not construed the statue to be anti-Catholic or the bishop's miter to be phallic when they selected it for exhibition. Several days later, the Board of Regents met to decide whether Holier Than Thou should be removed from campus. The board heard from speakers in support and in opposition to the statue. By a 5-2 vote, the regents decided to leave Holier Than Thou in place."

The Tenth Circuit rejected two complainants' argument that "Washburn's placement of Holier Than Thou on campus had both the purpose and effect of conveying government disapproval of the Roman Catholic religion."  The panel's analysis concludes with this:

[A]ppellants argue that a reasonable observer would see the content of the statue--a depiction of a bishop with a grotesque expression, a representation of a phallus on his head, and the title Holier Than Thou--as a state-sponsored anti-Catholic message. Washburn counters that the statue's message is not anti-Catholic, but merely a representation of the artist's humorous memories of his first confession.  Ultimately, this court need not determine the proper interpretation of Holier Than Thou. Regardless of whether the statue sends an anti-Catholic message, any reasonable observer viewing it in context would understand the university had not endorsed that message. Washburn therefore did not violate the Establishment Clause by including the sculpture in its art exhibition.

This is probably the right result under the Establishment Clause, properly understood.  Still, I cannot help thinking that the Washburn U. administrators -- and perhaps the panel, as well -- would have reacted quite differently if a prominent piece of art on campus mocked, in a similarly offensive way, any other religion or group.  Oh well.

Rick