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CASE NAME: O'Connor v. Washburn University

416 F.3d 1216 (10th Cir. 2005)


Blasphemy, Public Forum



In 2003, Washburn University, a public university in Topeka, Kansas, displayed five sculptures in an outdoor sculpture exhibition situated in a highly traveled campus location. One of the sculptures, Jerry Boyle’s Holier Than Thou. caused an uproar by both employees and students of the university claiming the statute was anti-Catholic.  The sculpture featured an inscription reading:

“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.”

Members of the university community objected to the bishop’s facial expression and to the phallic character of the bishop’s miter.

The appellants claimed that the exhibition featuring the religious-themed statue violated the Establishment Clause. The court applied the Lemon Test as modified by Justice O’Connor’s endorsement test in order to determine whether the sculpture violated the Establishment Clause

1. Purpose: The context and content of the sculpture does not suggest that Washburn University intended to disparage Catholics.  There is no evidence that the members of the Campus Beautification Committee, who chose the works included in the exhibition, had any ill will toward Catholics. Further, the sculptor, Jerry Boyle, was not anti Catholic but chose to capture a humorous moment of his childhood when he made his first trip to the church confessional. The university chose to exhibit the sculpture to diversify the student’s educational experience and to add to the aesthetics on campus. The university placed the sculpture in a prominent location in order to showcase the work and provide viewers with the best possible environment to examine the craftsmanship of the work. After members of the university community became enraged by the sculpture’s presence on campus, the president of the university chose not to remove the work because of the “opportunity to create a positive educational experience.” Further, the Board of Regents saw the situation as one to promote freedom of speech. The court ruled that the university did not have an anti-Catholic purpose in choosing to display the sculpture on campus.

2. Effect: The court ruled that any person observing the sculpture would understand its connection to a larger exhibition.  Generally, works that violate the Establishment Clause are isolated from other works, rather than being part of a larger group exhibition. Further, the court ruled that a reasonable person viewing the sculpture would not conclude that the government sanctioned the religious theme of the work.  This lack of religious purpose is furthered by the sculpture’s presence on the grounds of a university.

These materials are not intended, and should not be used, as legal advice. They necessarily contain generalizations that are not applicable in all jurisdictions or circumstances. Moreover, court decisions may be superceded by subsequent rulings, and may be subject to alternative interpretations. Corrections, clarification, and additions are welcome. Please send to [email protected].