Supreme Court Asked to Take Up Hostility to Religion Case

The Thomas More Law Center, a national, public-interest law firm based in Ann Arbor, Michigan, has filed a petition with the US Supreme Court, asking the court to review an Establishment Clause case involving a religious display that was hostile to Catholics. In addition to asking the high court to revisit its confusing and inconsistent Establishment Clause jurisprudence, the petition notes that this would be a case of first impression. The Supreme Court has yet to decide a “hostility to religion” case under the Establishment Clause.

Richard Thompson, the President and Chief Counsel for the Law Center, commented, “The Supreme Court’s modern Establishment Clause jurisprudence is in hopeless disarray. Despite giving lip service to the concept that the Establishment Clause prohibits both the promotion of and hostility towards religion, this and several other recent decisions by federal judges have demonstrated that there is a double standard. The Ten Commandments and the Nativity scene are out and public schools can’t mention intelligent design, but an overtly, anti-Catholic display is permissible because it allegedly enhances aesthetics. Apparently, the Establishment Clause protects atheists and secular humanists, but affords no comparable protection for Christians. This disturbing trend in our federal courts must be reversed.”

The US Court of Appeals for the Tenth Circuit in Denver, Colorado, affirmed a ruling by a district judge in Kansas that Washburn University did not violate the Constitution by publicly and prominently displaying a sculpture that mocks the Catholic faith. The sculpture at issue depicts a Roman Catholic bishop with a grotesque facial expression wearing a miter that resembles a phallus. It was entitled Holier than Thou and included a caption with a heretical statements about the Sacrament of Penance. The sculpture, which was supported with public funds, was displayed outside of the student union, one of the most traveled areas of the campus.

The lawsuit was brought by the Law Center on behalf of Dr. Thomas O’Connor and Andrew Strobl. Dr. O’Connor, a professor of 39 years at Washburn, and Strobl, a senior at Washburn at the time of the filing of the case, are both devout Catholics. The lawsuit alleged that Washburn’s display of this anti-Catholic symbol conveyed the impermissible state-sponsored message of hostility toward the Catholic faith in violation of the Establishment Clause. The district court and the Tenth Circuit disagreed, holding that “under the circumstances,” the display of this symbol did not constitute an unconstitutional endorsement of an anti-Catholic message.

According to Robert Muise, the Law Center attorney handling this case, “This case should give the Court an opportunity to clarify its decisions and provide much needed guidance for the lower federal courts, particularly with regard to hostility claims. The Court could decide to dispense with its current, muddled jurisprudence and return the Establishment Clause to its original meaning, which would also be a welcomed result.”


(This update is courtesy of the The Thomas More Law Center.)

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