Jihad in Topeka ?

The Thomas More Law Center has asked the Supreme Court to review a ruling by the 10th Circuit that a sculpture at Washburn University in Kansas was not "hostile to religion" in violation of the Establishment Clause.

The sculpture in question depicts a Roman Catholic bishop with a grotesque facial expression holding a miter that resembles a phallus. It is entitled "Holier than Thou" and contains what a Roman Catholic (or an Anglican, for that matter) would regard as heretical and derisive statements regarding the concept of penance as a part of reconciliation. It was paid for with public funds and prominently displayed outside the student union.

A couple of thoughts.

1. I missed the riots through the streets of Topeka. Where were all the nuns, priests and even Dad29 firing kalishnikovs into the air and demanding death for the infidels? How is it that the Washburn student union has been left standing? Had the religious community "expressed its pain," then perhaps the university would have concluded that "sensitivity" requires that it not display something so offensive to some members of that community.

2. The Thomas More Law Center is trying to hoist the Supreme Court on the petard of its own incoherent Establishment Clause jurisprudence. The Court's recent decisions have been dominated by Justice O'Connor's "endorsement" test. She argued that the government "establishes" religion (or, if you prefer, violates the "separation of church and state") when it endorses religion in a way that makes dissenters feel like they are outsiders; disfavored members of the political community." Thus, she concluded, display of the Ten Commandments was improper because non-believers would think that the state was endorsing religion (and, in particular, the Abrahamic faiths). The Court says that this applies to the endorsement of "non-religion" as well, but has never really squarely held that something hostile to religion endorses non-religion. The Washburn case presents the question in a way that is hard to avoid. If the Ten Commandments can make an atheist feel excluded, how is this sculpture going to make a Roman Catholic feel?

3. My hope is that the Court, now sans Justice O'Connor, will abandon the whole concept of endorsement as establishment. In a society where schools teach more than the 3-Rs and government endeavors to address social problems and itself participates in the public debate (by, for example, putting statues outside the student union), it is impossible to be neutral between religion and irreligion. My own view is that the state of Kansas is free to display this sculpture (although it shouldn't) and the Ten Commandments.