Arts groups accuse NYC mayor of favoring religion in museum funds dispute

Friday, October 15, 1999

Artists in New York are accusing Mayor Rudolph Giuliani and the city of showing unconstitutional religious favoritism in their decision to yank funding from an art museum that is displaying “The Holy Virgin Mary” painting.

In late September, Giuliani and his administration mounted a vigorous campaign against the Brooklyn Museum of Art for scheduling an exhibit that the mayor labeled repulsive and anti-Catholic. The exhibit, called “Sensation: Young British Artists From the Saatchi Collection,” opened on Oct. 2 and included artist Chris Ofili's “The Holy Virgin Mary,” a painting of a black Madonna with a breast fashioned out of elephant dung and with cutouts of vaginas and buttocks from pornographic magazines surrounding her.

After deriding the museum as reckless for exhibiting “Catholic-bashing” artwork, Giuliani cut off city funds to the museum. On Sept. 28, the museum sued Giuliani and the city in federal court claiming the cutoff violated the First Amendment.

Late last week a coalition of groups, including Volunteer Lawyers for the Arts and the New York City Arts Coalition, submitted a friend-of-the-court brief to the federal court arguing that Giuliani and his administration also violated the establishment clause of the First Amendment by taking it upon themselves to protect the public from a religious viewpoint – in essence, by “establishing” a religion as an entity entitled to special government protection.

“The administration repeatedly has stated that its central objection to the exhibit is Mr. Ofili's portrayal of the Virgin Mary,” wrote Marci Hamilton, a constitutional law scholar at Emory University and legal representative for the arts groups. “It has employed aggressive tactics to shut down the 'Sensation' exhibit in order to purify the public square of viewpoints that may be offensive to certain mainstream religious sensibilities. But for its perception of an offense given to the Catholic Church, the city administration might have had no objection to the exhibit at all.”

Deputy Mayor Joseph Lhota told the federal judge on Oct. 8 that when deciding to cut city funds to the museum he had asked himself whether the artwork desecrated someone's religion.

Only days before announcing the city would withhold funds from the museum, Giuliani said that no one “has a right to government subsidy for desecrating somebody else's religion,” and that government-subsidized institutions should not “do things that desecrate the most personal and deeply held views of people in society.”

National and New York religious representatives also called on Giuliani to disassociate the city from the museum. Cardinal John O'Connor said Ofili's painting “appears to be an attack not only on our Blessed Mother,” but also on “religion itself, and in a special way, on the Catholic Church.”

Jewish leaders have joined Giuliani at media gatherings to denounce the exhibit. The Orthodox Union, an association of Orthodox Jewish groups, said that “displaying a religious symbol splattered with dung is deeply offensive and can hardly be said to have any redeeming social or artistic value.”

According to Hamilton and the arts groups, Giuliani's administration has “sent a message to all artists and museums that do or might receive New York funding not to approach religion or religious themes analytically, critically, or from the perspective of another culture or time.”

“By defending religious dogma against perceived attack by the culture, the city administration is sending an unmistakable message that mainstream religious viewpoints are privileged,” Hamilton wrote. “The purpose of the city administration's threats and punitive actions is to privilege a particular religious viewpoint in the public square. It is to protect religion, in particular the Roman Catholic Church, from perceived artistic attack.”

However, Jim Henderson, a senior attorney for the American Center for Law and Justice, a conservative nonprofit group that defends religious liberties, says the same establishment clause that bars government endorsement of religion also forbids government hostility toward religion.

“Government cannot advance religion, but it cannot also express hostility towards a religion,” Henderson said. “The museum, with direct government funding and the use of a government building, is surely acting with hostility toward religion” by displaying the Ofili painting. The concept underlying Hamilton's argument is that a decision not to fund offensive trash cannot be made if the offensive trash deals with religious values.”

Henderson added that he would be “really surprised” if the federal court issued an injunction against the mayor's refusal of funds to the museum on establishment-clause grounds.