Dan Linnemeir v. Board of Trustees of Purdue University

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, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989); School District of Abington Township v. Schempp, 374 U.S. 203, 225, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Torcaso v. Watkins, 367 U.S. 488, 495 n. 11, 81 S.Ct. 1680, 6 L.Ed.2d 982 (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, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (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 prohibition of theory which is deemed antagonistic to a particular 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, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), quoting Burstyn, Inc. v. Wilson, 343 U.S. 495, 505, 72 S.Ct. 777, 96 L.Ed. 1098 (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, 68 S.Ct. 461, 92 L.Ed. 649 (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, 120 S.Ct. 2266, 147 L.Ed.2d 295 (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 instruction 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.