Yesterday, in O'Connor v. Washburn University, the U.S. Tenth Circuit Court of Appeals rejected an Establishment Clause challenge to a statue that Washburn University included in its annual outdoor sculpture exhibit. A Catholic professor and a Catholic student sued the municipal university claiming that the sculpture, called Holier Than Thou, conveyed an anti-Catholic message. It depicted a Roman Catholic bishop with a contorted facial expression and a miter that some have interpreted as a stylized representation of a phallus.
Even though the exhibit is now over, the court permitted the plaintiffs' claim for nominal damages to proceed. Finding plaintiffs had standing to sue, the court proceeded to the merits and rejected plaintiffs' arguments. It found that the University's purpose in selecting the statute was campus beautification, not anti-Catholic bias. It also found that in the context of this kind of art exhibit, a reasonable observer would not conclude that the University was endorsing an anti-Catholic message.
