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Decency Standards for Arts Funding Upheld by U.S. Supreme Court

Some NEA critics still calling for agency's dissolution

BY Joseph Esposito

July 12, 1998 Issue | Posted 7/12/98 at 1:00 PM

 

WASHINGTON—The U.S. Supreme Court upheld decency standards for federal aid to the arts before ending its 1997-98 term June 25. In an 8-1 decision, the Court appears to have placed certain funding parameters on the National Endowment for the Arts (NEA). But the agency, which has supported what many consider lewd and sacrilegious works, continues to thwart efforts to abolish it.

The surprisingly lopsided ruling in National Endowment for the Arts v. Finley upheld a 1990 law that directed the agency to include decency among its criteria in making awards. Karen Finley, who has performed with chocolate enveloping her nude body, was joined by three other artists and the National Association of Artists' Organizations in challenging the law. The recent Supreme Court decision reversed a 1996 ruling by the U.S. Circuit Court of Appeals, which had declared the law unconstitutional.

Justice Sandra Day O'Connor, in ruling that the law did not violate the First Amendment, wrote in the majority opinion: “So long as legislation does not infringe on other constitutionally protected rights, Congress has wide latitude to set spending priorities.”

The NEA was established in 1965, and since then has funded about 100,000 projects. Yet, the agency has come under fire for a number of awards in the last decade that have offended Catholics and others of faith.

Among the controversial projects that have been funded are homosexual photographs by Robert Mapplethorpe and what many consider a profoundly sacrilegious painting by Andres Serrano.

The Manhattan Theatre Club in New York City, which is producing the notorious play Corpus Christi, also has received NEA funds. The play, although not directly subsidized by federal money, has outraged Catholics. Laced with profanity, the play portrays Jesus and the Apostles as a group of homosexuals. William Donohue of the Catholic League for Religious and Civil Rights says this is “perhaps the most blasphemous play ever to appear on Broadway.”

In a Register interview, Jim Henderson, senior counsel at the American Center for Law and Justice (ACLJ), characterized such art: “These things are done to offend and only to offend.” The ACLJ is a public interest legal organization founded by Rev. Pat Robertson.

Support for artists and organizations who favor such offensive work prompted congressional leaders to enact the 1990 law in an effort to curb flagrantly indecent projects. Not surprisingly, conservatives, in and out of Congress, were essentially encouraged by the recent Supreme Court decision.

House majority leader Dick Armey (R-Texas) said, “I'm very pleased that the Supreme Court agrees that our government policies should reflect, not undermine, the values that have made America great—faith, family, personal freedom, and responsibility.”

Jay Sekulow, chief counsel of the ACLJ, said, “The winners here are the American people who are not going to have their tax dollars used to fund offensive projects under the guise of art. This is a major victory for common decency at a time when some groups argue that moral standards are irrelevant.”

The Catholic League's William Donohue added: “The Karen Finleys of this world who are bent on making a spectacle of themselves have every right to find private sources of funding for their depravity, but they have no constitutional lien on the public purse. In short, this is a victory for common sense, as well as decency, and it does absolutely nothing to endanger freedom of speech.”

Yet, concerns about the agency still exist. First, the law and the decision indicate only that decency needs to be considered; it does not require strict adherence to any discrete standards. Second, the subjective nature of art always leaves the issue of good taste potentially unresolved.

Jordan Lorence, a constitutional lawyer in Fairfax County, Va., told the Register, “What the Supreme Court did was not a bold decision. It was much weaker than it could have been.” He suggested that the concurring opinion offered by Justice Antonin Scalia was more on the mark.

Although voting to uphold the law's constitutionality, Scalia wrote: “Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of this statute.”

For such reasons many NEA critics have been seeking to abolish the agency. “The real issue the Supreme Court should be addressing is not how the government funds the arts but whether it should be involved in that practice at all,” said Rep. Philip Crane (R-Ill.).

Robert Knight, cultural director of the Washington-based Family Research Council, added: “In a time of high taxes and swollen government budgets, when many families are hard-pressed to live on one or even two incomes, it is unconscionable to use tax dollars to fund art.”

Lorence added, “This [funding] is not essential to American life.”

The Heritage Foundation, another public policy organization in Washington, D.C., issued a background study on the NEA last year. In it, Dr. Laurence Jarvik listed 10 reasons to defund the agency. Among these are that the NEA subsidizes cultural elitists; reduces the standard of American art; squanders resources; encourages politically correct themes; shrinks charitable gifts to the arts; and simply cannot be reformed.

In addition, art funding in the aggregate would generally increase if federal support ends; eliminating the NEA would demonstrate that Congress discourages wasteful spending; and defunding would strike a blow for limited government while curbing pornography.

Despite these objections, the agency has proved to have remarkable staying power with Congress. In July 1997 the House of Representatives voted by a 217-216 margin to eliminate the NEA and, in turn, to provide appropriate block grants to the states. Similar legislation was turned back in the Senate.

On the same day the Finley case was decided, five moderate Republicans voted with Democrats in the House Appropriations Committee to fund the NEA at current levels. On a 31-27 vote, the committee reported out an appropriations bill that includes $98 million for the agency. It is expected that when the House reconvenes July 14, that two amendments related to NEA defunding will be offered on the floor.

The NEAhas said that $3.7 billion in federal funds has been provided to the agency during the past 34 years. Many would argue that some of that money has been improperly spent, even if they support the concept of federal support for the arts. The Finley case may help encourage greater restraint at the agency, but the future of the NEAis clearly in the hands of Congress.

Joseph Esposito writes from Springfield, Virginia.