The Value of Being Disturbed

On October 9th of this past year, I listened to a debate staged on the Jim Lehrer Show between the lawyers for the Brooklyn Museum of Art and those representing Mayor Rudolph Giuliani of New York on the recent controversy over the provocative artwork currently on exhibit at the museum. As you no doubt know, an artist named Chris Ofili made a work of art portraying the Virgin Mary or, at least, called the Virgin Mary, which is spattered with elephant dung and small vaginal icons. The controversy became most heated when New York Mayor Giuliani decided to withhold the seven million dollars that the city regularly provides the Brooklyn Museum to cover its basic overhead on the grounds that the museum had violated the terms of the lease it had made with the city.[1] The lease stipulates that the Museum will set up exhibitions that will be appropriate for school children or, at least, it stipulates that that is one of the services, although not the exclusive one, that the museum shall provide. This more narrow argument about the lease stipulation, however, was preceded by a broader call of outrage by the Mayor. He claimed first that the exhibition was offensive and that, in particular, it offended people with certain religious beliefs. The Mayor argued that the sensibilities of religious Christians, mainly Catholics it seems, are offended by this artwork, that such Christians are taxpayers, and that they should not be paying taxes to support art that fundamentally offends or, indeed, violates their religious beliefs. His exact words on October 3rd were these:

The issue before us is whether hard-earned taxpayer dollars should go toward actively supporting an exhibit that is patently offensive to many of the taxpayers themselves. That many taxpayers feel is really just a display of hatred toward a particular religious group or extremely offensive in the way in which it deals with sexuality and other areas.

[2]

Later in the same public address, the Mayor asked, “...should City government be obligated to condone, finance, and support the printing and distribution of hate literature, any more than hate exhibits or similar kinds of exhibits?” He answered “no” and then went on to claim that taxpayer money should not be used for the “desecration of national or religious symbols, or spent on hate literature or hate speech.”

The structure of this last argument is particularly interesting, since it suggests that the art exhibit operates on the model of hate speech. Hate speech is generally considered to be a form of speech that acts in a discriminatory way, and its discriminates against a group that is understood to deserve special protection under the law. In other words, the assumption behind the doctrine of hate speech, as articulated by Mari Matsuda, Richard Delgado, Catharine MacKinnon, and others, is that it is speech that is used by a person or group who occupies a dominant position in society against those who occupy subordinate positions, and that the speech act itself is a further act of subordination. For the art exhibit to function as hate speech, as Giuliani suggests, is for us to understand that practicing Catholics for whom the ‘Virgin Mary’ is a sacred icon are being considered a minority, and that the work of art, and those who exhibit it, are practicing a form of discrimination. Indeed, the rhetoric of the Mayor’s first argument relies fundamentally on the notion that taxpayers ought not to be supporting anything which constitutes persecution or discrimination of individuals on the basis of their religious beliefs. This is a basic precept of anti-discrimination law, arguably the oldest precept in its jurisprudence. So it is not a rhetorically weak strategy to claim that a work of art, and those who present it, actively discriminate against individuals on the basis of their religious beliefs.

Now, the Mayor did not make the claim that practicing Christians or, indeed, Catholics, those who hold the icon of the Virgin Mary to be sacred, are religious minorities. But it does seem that the rhetorical force of his argument, based on the legal and moral unacceptability of discrimination on...