Linnemeir, Dan v. Birck, Michael J. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-3002
Dan Linnemeir, et al.,
Plaintiffs-Appellants,
v.
Board of Trustees of Purdue University,
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:01CV0266--William C. Lee, Chief Judge.
Submitted July 27, 2001--Decided August 7, 2001
Before Bauer, Posner, and Coffey, Circuit
Judges.
Posner, Circuit Judge. Three residents
of Indiana move under Fed. R. App. P. 8
for a stay pending their appeal from the
district court’s refusal to grant a
preliminary injunction that would forbid
the Fort Wayne campus of Indiana
University-Purdue University, a state
institution, to put on a performance of
Terrence McNally’s notorious play Corpus
Christi. The play, scheduled to begin its
run on August 10, depicts Jesus Christ as
a homosexual who has sexual relations
with his disciples, and the movants argue
that by presenting the play the
university will be violating the First
Amendment by publicly endorsing anti-
Christian beliefs. The play is indeed
blasphemous, although that apparently was
not the intention of McNally (who is
himself homosexual), according to his
preface to the published version.
Whatever his intentions, most believing
Christians will be shocked and offended
to hear one of Christ’s disciples yell to
Christ on the cross, "Hey, faggot! If I
was the son of God I wouldn’t be hanging
here with my dick between my legs. Save
us all if you’re really Him." That is not
an untypical passage.
The play is to be presented at a theater
on campus that is open to any group that
wants to use it, so long as the use would
comport with the university’s educational
mission. The performance of Corpus
Christi would so comport, because the
play is being put on by a theater major
as part of his course requirements. For
obvious reasons, the university has been
at pains to disclaim any endorsement of
the theme of the play; the playbill
states: "The selection and performance of
the play do not constitute an endorsement
by [the university] of the viewpoints
conveyed by the play."
The contention that the First Amendment
forbids a state university to provide a
venue for the expression of views
antagonistic to conventional Christian
beliefs is absurd. It would imply that
teachers in state universities could not
teach important works by Voltaire,
Hobbes, Hume, Darwin, Mill, Marx,
Nietzsche, Freud, Yeats, Heidegger,
Sartre, Camus, John Dewey, and countless
other staples of Western culture. It is
true that a public university that had a
policy of promoting atheism, or Satanism,
or secular humanism, or for that matter
Unitarianism or Buddhism, would be
violating the religion clauses of the
First Amendment. County of Allegheny v.
ACLU, 492 U.S. 573, 610-11 (1989); School
District of Abington Township v. Schempp,
374 U.S. 203, 225 (1963); Torcaso v.
Watkins, 367 U.S. 488, 495 n. 11 (1961);
Brooks v. City of Oak Ridge, 222 F.3d
259, 266 (6th Cir. 2000); Church on the
Rock v. City of Albuquerque, 84 F.3d
1273, 1279 (10th Cir. 1996); Edwards v.
Aguillard, 482 U.S. 578, 635 n. 6 (1981)
(dissenting opinion). But that is not
charged; and so the controlling principle
is that the amendment "forbids alike the
preference of a religious doctrine or the
prohi-bition of theory which is deemed
antagonistic to a partic-ular dogma . . .
. ’[T]he state has no legitimate interest
in protecting any or all religions from
views distasteful to them.’" Epperson v.
Arkansas, 393 U.S. 97, 106-07 (1968),
quoting Burstyn, Inc. v. Wilson, 343 U.S.
495, 505 (1952). "It is not the business
of government in our nation to suppress
real or imagined attacks upon a
particular religious doctrine." Id. The
student whose project it is to produce
Corpus Christi to satisfy the
requirements of his major is of course
not an employee of the university, let
alone a part of its management; he was
not told to put on this offensive play--
it was his own idea; and there is no
evidence that if the play attacked some
other religion, the university
authorities would have forbidden it. In
short, there is no evidence that the
university is hostile to Christianity.
The government’s interest in providing
a stimulating, well-rounded education
would be crippled by attempting to
accommodate every parent’s hostility to
books inconsistent with their religious
beliefs. Fleischfresser v. Directors of
School District 200, 15 F.3d 680, 690
(7th Cir. 1994); see also McCollum v.
Board of Education, 333 U.S. 203, 235
(1948) (Jackson, J., concurring). "If an
Establishment Clause violation arose each
time a student believed that a school
practice either advanced or disapproved
of a religion, school curricula would be
reduced to the lowest common denominator,
permitting each student to become a
’curriculum review committee’ unto
himself." Brown v. Woodland Joint Unified
School District, 27 F.3d 1373, 1379 (9th
Cir. 1994).
The parties and the district judge have
spent a lot of time debating whether the
university’s theater is really a public
forum. Santa Fe Independent School
District v. Doe, 530 U.S. 290, 302-04
(2000); Chicago Acorn v. Metropolitan
Pier & Exposition Authority, 150 F.3d 695(7th Cir. 1998). The plaintiffs seem to
think that if it is not, the university
has no right to allow a blasphemous play
to be performed in it. (If it is, that
would weaken any inference that by
permitting Corpus Christi to be performed
the university was endorsing its message.
Santa Fe Independent School District v.
Doe, supra, 530 U.S. at 302-03.) That is
incorrect. Classrooms are not public
forums; but the school authorities and
the teachers, not the courts, decide
whether classroom in-struction shall
include works by blasphemers. E.g., Grove
v. Mead School District No. 354, 753 F.2d
1528, 1534 (9th Cir. 1985). It is the
same with a university theater.
In reciting these well-established
propositions we do not mean to deny the
pain that a play such as Corpus Christi
inflicts on believing Christians (and not
only on them) or to suggest that its
author ranks with the nonbelieving giants
of our cultural tradition. The fact that
the play has been published, and ran in
New York, will not immunize it from
charges that it is a typical product of
the lunatic cultural Left. The
conservative cultural historian Gertrude
Himmelfarb, in her book One Nation, Two
Cultures (1999), brackets Corpus Christi
with a sitcom in which Abraham Lincoln
and his wife make sexual overtures to the
same black man and with "’whiteness
studies’ (which celebrate ’white trash’
and expose the inherent racism in being
white)." Id. at 127-28, 132. But the
quality or lack thereof of Corpus Christi
and other postmodernist provocations is a
matter for the state university, not for
federal judges, to determine, as would be
obvious if a parent were complaining that
in a course on the Bible the teacher had
used a poor translation. Academic freedom
(see Piarowski v. Illinois Community
College District 515, 759 F.2d 625, 629-
30 (7th Cir. 1985), and cases cited
there), and states’ rights, alike demand
deference to educational judgments that
are not invidious; for, to repeat, the
university has been scrupulous in
publicly disclaiming that by exhibiting
Corpus Christi it is allying itself with
the enemies of Christianity. We add that
Piarowski was a case about a public
college’s own efforts to control an
exhibition of offensive art on its
premises; it was not about private
citizens’ trying to prevent a public
college from permitting the exhibition of
offensive art, or in this case theater,
as part of its curricular program.
The motion for a stay is
Denied.
COFFEY, Circuit Judge, dissenting. In
this case, we are faced with a clash in
the balancing of the First Amendment of
the U.S. Constitution and academia’s
interpretation of the freedom of speech
clause. I am fully cognizant that college
campuses play a vital role as a forum for
the free exchange of ideas, as well they
should.
However, should this court allow the Ft.
Wayne campus of Indiana University/Purdue
University (IPFW) to stage a performance
of Corpus Christi, it states a clear
message that we will, with a wink and a
nod, tolerate government-sponsored
attacks on religion. Allowing the
university to stage the play would open
the flood gates for anti-religious speech
where any religion (be it Roman
Catholicism, Protestantism, Judaism,
Islam, Buddhism, etc.) could be the
target of the vile and hateful speech
that is from this date forward sanctioned
by the government.
It is interesting to note that the State
of Indiana is one of only six states in
the country, which to date has failed to
enact hate crime law legislation.
Nonetheless, the First Amendment forbids
government hostility toward any and all
religions, as does the anti-harassment
policy in the IPFW Code of Student
Conduct. Because this case is of utmost
importance to our First Amendment
jurisprudence, the denial of the
plaintiffs-appellants’ motion under
F.R.A.P. 8 for a stay pending appeal from
the district court’s denial to grant a
preliminary injunction, forces me to
respectfully dissent.
I. Standard of Review
In reviewing the plaintiffs-appellants’
motion for an injunction pending appeal,
we apply the same standard we would in
reviewing a district court’s denial of a
preliminary injunction. That is, we
review the district court’s findings of
fact for clear error, its balancing of
the factors for a preliminary injunction
under the abuse of discretion standard,
and its legal conclusions de novo. Kiel
v. City of Kenosha, 236 F.3d 814, 815
(7th Cir. 2000). In assessing whether a
preliminary injunction is warranted, a
court must consider whether the party
seeking the injunction has demonstrated
that: 1) it has a reasonable likelihood
of success on the merits; 2) no adequate
remedy at law exists; 3) it will suffer
irreparable harm if it is denied; 4) the
irreparable harm the party will suffer
without injunctive relief is greater than
the harm the opposing party will suffer
if the preliminary injunction is granted;
and 5) the preliminary injunction will
not harm the public interest. Id.II. The State of the Record
On the state of the scant evidentiary
record before us, it is almost impossible
to determine the threshold question of
whether Studio Theater has fulfilled the
test for a public forum as set forth by
the Supreme Court. A public forum is
"defined by the objective characteristics
of the property, such as whether, ’by
long tradition or government fiat,’ the
property has been ’devoted to assembly
and debate.’" Arkansas Educ. Television
Comm’n v. Forbes, 523 U.S. 666, 677
(1998). "Limited" public fora are places
where the government has decided to open
up an area or facility to a broad range
of expressive conduct. International Soc.
for Krishna Consciousness, Inc. v. Lee,
505 U.S. 672, 678 (1992). The evidence
relied upon by the district court for its
"limited public forum" holding is that
(1) "two university administrators
testified that any group who desires to
utilize Studio Theater would be permitted
to do so on a viewpoint neutral basis so
long as the group’s activities comport
with the educational mission of the
university," and (2) only one outside
group in the last thirty years, a high
school drama club, has been granted
permission to use the theater to stage a
production. However, the two university
administrators (IPFW Chancellor Michael
Wartell and Theater Department Chair and
Artistic Director Larry Life) produced no
evidence of any such "open" policy other
than their own self-serving testimony.
Without any evidentiary support, their
self-serving testimony is hollow.
In my view, the record is devoid of any
evidence regarding the use of Studio
Theater by non-university organizations
to stage their own productions, with the
singular exception of one outside group
in the last thirty years. If, as Director
Life and Chancellor Wartell maintain, the
school has a policy of allowing open
access to the theater to other student
groups and non-IPFW groups, then why
hasn’t a single document, whether a
handbook, written policy, official
proclamation, statement on non-
discriminatory openness of the forum or
the like, been supplied for the record?
This policy, if there is one, may very
well be secreted in the theater
building’s cornerstone, because there is
no evidence of it in this record. There
is no evidence in this record that IPFW
student groups, other than theater
students, have taken advantage of this
policy. Has the school made the public
at-large aware of its policy allowing
Studio Theater to be used? Have there
been previous denials of student or non-
IPFW groups’ applications to use the
theater? What are the criteria that the
Theater Department’s five-member faculty
screening committee uses to determine
whether or not to approve a student
performance? Is there any written
evidence of the screening committee’s
previous decisions to allow (or deny)
student use, or the use by non-university
groups, of the theater? These questions
and a myriad of others remain unanswered
in the limited record.
The evidentiary record before us is so
sparse and leaves so many questions
unanswered, that the most prudent course
of action would be to grant the
plaintiffs-appellants’ motion for a stay
in order that the record can be
supplemented and clarified. This would
allow us to make a more informed judgment
and assist us in deciding if IPFW’s
practice has in fact created a "limited
public forum." After all, the play can be
rescheduled, but the damage to the First
Amendment caused by its production could
never be undone.
III. Government Speech v. Private Speech-
-Is Studio Theater a Limited Public
Forum?
Even were we to accept the record
developed in the tri-al court as being
sufficiently complete to make a well-
reasoned and informed decision, I would
nonetheless be forced to dissent because
I am convinced that the district court’s
finding that Studio Theater is a "limited
public forum" is not supported in the
evidence presented.
The district court correctly noted that
the threshold question facing the court
was who is the "speaker" in this case--
the government or a private individual?
It is axiomatic that government speech
that endorses religion, or evidences
hostility toward a particular religion,
is constitutionally improper under the
Establishment Clause, but that private
religious speech is protected by the Free
Exercise Clause. Board of Educ. of the
Westside Cmty. Sch. v. Mergens, 496 U.S.
226, 250 (1990). It is also true that
private religious speech enunciated on
government property is not automatically
attributed to the government. See Good
News Club v. Milford Cent. Sch., ___ U.S.
___, 121 S.Ct. 2093, 2103 (2001). Whether
speech that occurs on government property
can be attributed to the government turns
on whether the forum is truly open to the
public and the degree to which the speech
is "sponsored" by the governmental
entity. See Widmar v. Vincent, 454 U.S.
263, 276 (1981); Good News Club, 121
S.Ct. at 2103; Doe v. Village of
Crestwood, Illinois, 917 F.2d 1476, 1478-
79 (7th Cir. 1990). In this case, the
trial judge held that Studio Theater in
Kettler Hall is "at the very least a
limited public forum." Further, the trial
judge concluded that the university did
not implicate the Establishment Clause by
staging a performance of Corpus Christi
because the university maintained
viewpoint neutrality when selecting plays
to be performed in Studio Theater.
However, the premise supporting the trial
judge’s conclusion (that Studio Theater
is a "limited public forum") lacks
evidentiary support in the (limited)
record.
As mentioned previously, the evidence
relied upon by the district court for its
"limited public forum" holding is that
(1) Chancellor Wartell and Director Life
testified that any group desiring to use
Studio Theater would be permitted to do
so on a viewpoint neutral basis so long
as the group’s activities comport with
the (expansive and undefined)
"educational mission of the university,"
and (2) just one outside group in the
past 30 years, a high school drama club,
has used the theater to stage a
production. However, the two university
administrators failed to produce any evi
dence of such an "open" policy other than
their own self-serving statements in
court. No written university policy
(handbooks, etc.) regarding open public
use was introduced in evidence or cited
by the witnesses. There was no testimony
to the effect that the university had at
any time or in any way publicized the
alleged "openness" of Studio Theater to
the public or invited any private group
to use the theater. Most importantly,
Director Life was able to delineate only
one instance in three decades in which
any non-university group had used the
theater, and he identified all other uses
of the theater as being productions
staged by the Theater Department at IPFW.
The absence of documented historical
evidence, either oral or written, in
support of the district court’s finding
that Studio Theater is a limited public
forum stands out like a beacon in the
night.
I do not agree with the trial court’s
finding that Studio Theater is a "limited
public forum" because it is only "open"
to students who are required to stage
productions as part of the Theater
Department’s curriculum. The use of a
university theater exclusively by its own
students (one exception) as part of their
credited course work is no more a public
forum than is an ordinary university
classroom in which students are required
to present oral reports under the
direction of the professor. There is no
evidence in this record that the theater
is open to the general student body.
Rather, testimony demonstrated that only
40-50 students are registered in the
Theater Department, only three of which
are classified as having an emphasis in
directing. Thus only three students out
of the entire IPFW student body will be
staging productions in Studio Theater
this year. Moreover, Director Life
testified that in the past thirty years,
only 20-25 student-directed plays have
been staged in the theater. This
extremely limited use of Studio Theater
by IPFW’s own theater students falls
short of lending credence to the finding
of a limited public forum.
Looking at Seventh Circuit case law, I
note that in Piarowski v. Illinois Cmty.
Coll. Dist. 515, 759 F.2d 625 (7th Cir.
1985), we addressed the "public forum"
issue in the context of a college art
teacher who had been ordered by the
administration to relocate several of his
art works from a gallery on college
grounds to another part of the school be
cause the art in question contained
sexually explicit representations (an
exercise in good judgment on the part of
the administration, unlike this case).
The teacher brought suit on First
Amendment grounds, arguing, in part, that
the gallery was a public forum because
artists from outside the college had
occasionally exhibited works there. We
rejected this contention:
That [the teacher] sometimes invited
artists from outside the college to
exhibit their work in the gallery no more
made the gallery a public forum than a
teacher’s inviting a guest lecturer to
his classroom would make the classroom a
public forum . . . . Occasional use by
outsiders, which is all that this record
shows, is not enough to make a college
art gallery a public forum.
Piarowski, 759 F.2d at 629 (emphasis
added).
It is self-evident that the one single
use of Studio Theater at IPFW by
"outsiders" in the last 30 years, as dis
closed in the record, does not even rise
to the level of the "occasional use" that
was found to be inadequate to create a
public forum in Piarowski. The facts of
this case are a far cry from the court’s
determination of a public forum in
Widmar, where the university made its
facilities generally available to over
100 autonomous student groups. Widmar,
454 U.S. at 265. Based on the record
presented in this case and the Seventh
Circuit case law, I am forced to disagree
with the district court’s conclusion that
Studio Theater is a limited public forum.
My conclusion that in this case it is
the government, and not a private
individual, that is doing the "speaking"
is strengthened by our holding in Doe v.
Village of Crestwood, Illinois, 917 F.2d
1476 (7th Cir. 1990). In that case, we
held that a municipality was sponsoring a
Catholic Mass at an Italian festival held
in a municipal park, and that the
municipality’s "sponsorship" of the mass
conveyed a message of governmental
"approval or endorsement" of
Christianity. Id. at 1479. The question
of municipal sponsorship was established
in the facts that (1) a municipal
employee had invited and recruited the
priest to say the mass; (2) an article in
a newspaper published by the municipality
bore the headlines "Italian Mass to be
Celebrated at our Italian Fest" and an
advertisement stated "Join Us for a
Traditional Italian Mass Celebration";
and (3) no evidence was produced to
support the contention that a private
group was the true sponsor of the mass or
that the municipality was simply
providing a public forum equally open to
other private groups. Id. at 1479. Our
finding of municipal sponsorship was not
affected by the additional fact that
there was no evidence that the
municipality was planning to spend a
single cent on the mass. Id. at 1478.
The facts presented herein demonstrate
governmental sponsorship in a far more
compelling manner than those set forth in
Crestwood: (1) John Gilbert, a theater
student, is intent on producing Corpus
Christi. He is required to direct a play
under the supervision of the school in
order that he might fulfill his degree
requirements; (2) the selection of Corpus
Christi was approved by a five-member
panel composed of faculty from the
university’s theater department, and the
Chancellor of the university retains the
authority to overrule the panel’s
approval; (3) the play has been
advertised in a brochure paid for by the
university and mailed by the university
to subscribers; (4) Director Life will be
attending all rehearsals of the play and
advising Gilbert regarding his artistic
approach to the production and his work
with the actors; (5) Director Life has
been interviewed and quoted several times
in the local media regarding the play;
(6) Chancellor Wartell has written a
local newspaper article defending
production of the play and has promoted
public interest in it through his
declaration of intention to attend the
play; and (7) the play will be performed
in a campus theater in which the
utilities and security are underwritten
by the university. In short, the facts
contained in this record are more
probative of university sponsorship than
were the limited facts of municipal
sponsorship of the Catholic Mass in
Crestwood.
I conclude that Studio Theater cannot be
properly classified as a public forum or
limited public forum. The "speaker" in
this case is therefore the university,
and this issue must be analyzed under the
test established in Lemon v. Kurtzman,
403 U.S. 602 (1971), for a determination
of whether the university’s "speech"
constitutes an impermissible endorsement
or disapproval of religion.
IV. Establishment Clause Analysis
The first prong of the Lemon test
focuses on the purpose of the
governmental conduct at issue./1 "The
purpose prong of the Lemon test asks
whether government’s actual purpose is to
endorse or disapprove of religion."
Edwards v. Aguillard, 482 U.S. 578, 585
(1987) (emphasis added) (quoting Lynch v.
Donnelly, 465 U.S. 668, 690 (1984)
(O’Connor, J., concurring)). Both
endorsement and disapproval are
prohibited in light of the preeminent
goal of the First Amendment to promote
government "neutrality" toward religion.
See Grand Rapids Sch. Dist. v. Ball, 473
U.S. 373, 382 (1985).
The Supreme Court has consistently
described the Establishment Clause as
forbidding not only state action
motivated by a desire to advance
religion, but also action intended to
"disapprove," "inhibit," or evince
"hostility" toward religion. See Edwards,
482 U.S. at 585 ("disapprove"); Lynch,
465 U.S. at 673 ("hostility"); Committee
for Pub. Educ. & Religious Liberty v.
Nyquist, 413 U.S. 756, 788 (1973)
("inhibi[t]"). Prohibited government
action includes that which "foster[s] a
pervasive bias or hostility to religion,
which could undermine the very neutrality
the Establishment Clause requires."
Rosenberger v. Rector & Visitors of Univ.
of Virginia, 515 U.S. 819, 845-46 (1995)
(emphasis added); see also Mergens, 496
U.S. at 248 (plurality opinion)
(government action must demonstrate
neutrality toward religion, not
"hostility toward religion."). As stated
by the Supreme Court:
[The Constitution] affirmatively mandates
accommodation, not merely tolerance, of
all religions, and forbids hostility
toward any . . . . Indeed, as we have
observed, such hostility would bring us
into ’war with our national tradition as
embodied in the First Amendment’s
guaranty of the free exercise of
religion.’
Lynch, 465 U.S. at 673 (citations
omitted, emphasis added).
Governmental endorsement of a particular
religious faith is prohibited, and it is
banned because the endorsement of one
faith acts as a tacit disapproval of
other faiths. Thus, an overt, state-
sponsored demeaning of the tenets of one
faith cannot pass constitutional muster
any more than the implied condemnation
resulting from the endorsement of
another. As Justice O’Connor stated:
Endorsement sends a message to
nonadherents that they are outsiders, not
full members of the political community,
and an accompanying message to adherents
that they are insiders, favored members
of the political community. Disapproval
sends the opposite message.
Lynch, 465 U.S. at 688 (O’Connor, J.,
concurring) (emphasis added).
A state-sponsored disparagement of a
particular belief sends the message to
its believers that they and their firmly
held convictions are disfavored members
of the community. The First Amendment
mandates government neutrality toward
religion and bars hostility aimed at any
particular faith. I believe that the
University’s sponsorship of Corpus
Christi runs afoul of this fundamental
principle./2 In my view the play is
nothing other than a vulgar, undisguised
mockery and disparagement of the Roman
Catholic Christian faith.
It is interesting to note that the
majority did not rely on the district
court’s limited public forum reasoning
and instead decided the case under the
all-inclusive theory of "academic
freedom." The majority’s view displays
disfavor for anyone who would attempt to
set limits upon the question of speech
that may occur on campus. This includes
telling the university representatives
that they are bound by the Constitution
and have no right to participate in the
disparagement of any religious faith./3
While I certainly respect, and always
will, the concept of academic freedom and
believe that college campuses "play a
vital role" as a forum for the free
exchange of ideas, I also wish to make it
clear that this freedom has limits and
universities must respect the religious
rights of all protected in the First
Amendment:
While we have spoken in terms of a wide
protection for the academic freedom and
autonomy that bars legis-latures (and
courts) from imposing conditions on the
spectrum of subjects taught and
viewpoints expressed in college teaching,
we have never held that universities lie
entirely beyond the reach of students’
First Amendment rights.
Board of Regents of Univ. of Wisconsin
Sys. v. Southworth, 529 U.S. 217, 238
(Souter, J., concurring); see also Dow
Chem. Co. v. Allen, 672 F.2d 1262, 1275
(7th Cir. 1982) ("Of course academic
freedom, like other constitutional
rights, is not absolute, and must on
occasion be balanced against important
competing interests.") (emphasis added).
The majority, in an attempt to justify
its academic freedom analysis, compares
the performance of Corpus Christi to
teaching the works of Darwin, Marx,
Freud, and other "nonbelieving giants in
our cultural tradition." To me this
comparison is inaccurate and misleading.
The works of Darwin and Marx might be
considered, in a limited way, to be
incompatible with Christian beliefs, but
the premise of Corpus Christi is entirely
different--it is an outright
disparagement and mockery of fundamental
Christian beliefs, and can only be
characterized as a vulgar attack on
Christianity and those who choose to
accept and believe its teachings. The
majority and I agree that the
vilification of Christianity exemplified
by Corpus Christi is not legitimized by
the fact that the play has been published
and performed, or that it might even be
regarded by some as having artistic
merit. The portrayal of Jesus Christ as a
sexually active homosexual who engages in
sexual acts with his disciples amidst a
torrent of profane and vulgar language is
nothing short of the overt defamation of
a particular religious faith, and the
university’s sponsorship and endorsement
of this attack impermissibly evinces a
hostility toward Christianity prohibited
by the Establishment Clause. One can
opine that those responsible for the
portrayal of historical facts in this
manner may be prey to highly prejudicial
thinking. Their actions more likely than
not are intended to undermine and even
shatter the moral beliefs shared by a
large number of this world’s citizens and
this behavior can be considered
unethical. The university’s written
declaration of noendorsement contained in
the play’s program reminds one of a
biblical figure who attempted to wash his
hands of any responsibility for his
actions.
Closing our eyes to the blatant state-
sponsored hostility to Christianity
portrayed in Corpus Christi would
legitimize and might very well lead to
and possibly incite other forms of "hate
speech" directed at ethnic minorities,
other religious groups, women, and even
those in the gay community. Christianity
is no less deserving of protection from
state-endorsed attack than are any of
these groups, and the decision today, in
my view, fails our constitutional duty to
protect all segments of our cherished,
diverse society from religious hostility.
V. Viewpoint Discrimination
Even were I to agree with the district
court that IPFW has created a "limited
public forum" at Studio Theater, I would
still be forced to dissent. Once the
government has opened a limited forum, it
must "respect the lawful boundaries it
has itself set. [It] may not exclude
speech where its distinction is not
’reasonable in light of the purpose
served by the forum,’ nor may it
discriminate against speech on the basis
of its viewpoint." Rosenberger, 515 U.S.
at 828 (internal citations omitted). I
refuse to rush to the conclusion reached
by the district court and the majority
that the university has not engaged in
viewpoint discrimination in their
procedure of selecting the plays that are
to be performed in Studio Theater.
The only evidence in the record to
suggest that the school has not engaged
in any viewpoint discrimination is the
self-serving declaration of IPFW Theater
Department’s Chair and Artistic Director
Larry Life that he has not engaged in
viewpoint discrimination and IPFW
Chancellor Wartell’s testimony that if a
play is "brought up through the theater
department in standard form" that he
would not stop it unless its content were
illegal. But Director Life has
demonstrated his support for the very
heart and soul of this particular play,
and has "donated" his time to attend each
and every rehearsal, while Chancellor
Wartell, the senior administrator at
IPFW, has stated publically that he will
attend the play.
On the other hand, the record is devoid
of any evidence to establish that other
theater groups have been allowed to use
Studio Theater to stage their own
productions. Isn’t it strange that there
is only one instance in thirty years
where a non-university group used the
theater. This is a far cry from the
customary usage standard usually referred
to when determining the existence of a
public forum. As previously discussed,
Life and Wartell maintain that the school
has a "policy" that allows other student
groups and non-university related groups
access to the theater. Again, it is all
well and good for Wartell and Life to
baldly assert on the eve of litigation
that such a policy exists, but the record
contains no support for their assertion.
Their testimony, without any other
factual support, is not only hollow, but
it is based on a foundation of quicksand.
Director Life testified that the
production of Corpus Christi at issue was
approved by the five-member faculty
committee that he chaired./4 If the
play offered for presentation happened to
be anti-Semitic, overtly racist, or
derogatory towards those who choose
"alternative lifestyles," there is little
doubt that it would have been rejected by
the Theater Department’s five-member
faculty screening committee. The
university has an anti-harassment policy
in its Code of Student Conduct that
Chancellor Wartell admits applies to the
Theater Department. This policy prohibits
conduct towards an identifiable group of
persons that has the purpose or effect of
creating a hostile educational
environment. The policy goes on to state
that IPFW is committed to recognizing the
"worth and dignity of every person" and
"fostering tolerance, sensitivity,
understanding and mutual respect . . . ."
The policy also provides for sanctions
for conduct "motivated by bias against a
person’s race, gender, religion, color,
age, national origin, ancestry, or
disability," but the policy was not
applied in this case. Why? Possibly, the
university has in other instances invoked
its anti-harassment policy to prohibit
the production of other offensive plays,
or perhaps it has not, but the record is
silent on this question. If the IPFW has
offered some groups--whether they be
homosexuals, blacks, or Muslims--the
protection of an anti-harassment policy,
while in this case denying it to
Christians and allowing intolerance,
disrespect, and hostility towards their
beliefs, then IPFW has engaged in a
double standard, which, in my view, is
violative of the Constitution.
"It is axiomatic that the government may
not regulate speech based on its
substantive content or the message it
conveys." Rosenberger, 515 U.S. at 828.
"Discrimination against speech because of
its message is presumed to be
unconstitutional." Id. (emphasis added).
If IPFW engages in viewpoint
discrimination, not necessarily by
allowing the performance of an anti-
Christian play, but by refusing to allow
the performance of plays similarly
derogatory towards other groups, then
their actions are unconstitutional. Cf.
Grossbaum v. Indianapolis-Marion County
Bldg. Auth., 63 F.3d 581, 591-92 (7th
Cir. 1995) (in which a county that made
the lobby of public building available
for members of the public to display
exhibits engaged in viewpoint
discrimination in violation of the First
Amendment where it refused to allow the
display of a menorah). "The government
must abstain from regulating speech when
the specific motivating ideology or the
opinion or perspective of the speaker is
the rationale for the restriction."
Rosenberger, 515 U.S. at 828.
Fairness and equity dictate that IPFW
must maintain an environment in which all
of its students--whether they be
Protestants, Moslems, Christians, Jews,
or any religious, racial or ethnic
minority--are free from all forms of
harassment and intolerance. At this
juncture in the proceed-ings, the record
is not sufficiently developed to
determine whether the university has
engaged in viewpoint discrimination. On
the state of the record and the case law
presented herein, the panel should
therefore grant plaintiffs-appellants’
motion for a stay pending appeal in order
that further discovery can be had on
whether the university has truly
respected the boundaries it has allegedly
set regarding the production of any play,
no matter its content, if the request
were "brought up through the theater
department in standard form," as
Chancellor Wartell testified.
I am sorry that the Chancellor of a
university as highly respected as the
institution involved did not see fit to
move this foul, disparaging, hate-
motivated production off the campus to a
private facility. In the final analysis,
Corpus Christi serves no purpose other
than possibly inciting the citizenry
against Christianity, resulting in the
promotion of hatred and disunity.
For all of these reasons I respectfully
dissent, and would grant the stay in
order that a more complete record can be
made.
FOOTNOTES
/1 State action violates the Establishment Clause if
it fails to satisfy any of the three prongs of
the Lemon test. Edwards, 482 U.S. at 583.
/2 I find it ironic that the university’s Code of
Student Rights, Responsibilities and Conduct
proscribes any conduct that either discriminates
on the basis of religion or that stigmatizes any
individual on the basis of race, ethnicity,
ancestry, gender, or sexual orientation. Indiana
University Purdue University Indianapolis Code of
Student Rights, Responsibilities, and Conduct,
sec. I(A) (August 15, 1997).
/3 Given the complete lack of evidence supporting
the district court’s finding of a limited public
forum, the majority’s reliance on another basis
for upholding the trial court is not surprising.
/4 The record discloses that Gilbert’s initial
request to perform Corpus Christi was rejected by
the faculty review committee in a unanimous vote,
and that his second request, not a year later but
a mere four months later, was accepted (in a
unanimous vote). The reason given by Chairman
Life for this sudden change of heart was that
Gilbert, in that short time frame, had taken
"several directed studies in directing."