Justices back decency standard in arts funding

WASHINGTON - Hearing arguments in a case that blends art, politics and the law, the Supreme Court justices strongly signaled yesterday they will uphold a "decency" standard for federal arts grants.

In questions and comments, none of the nine justices suggested that Congress violated the First Amendment when it told the National Endowment for the Arts to consider "general standards of decency and respect for the diverse beliefs and values of the American people" when awarding grants.

Indeed, Chief Justice William Rehnquist wanted to know why the government did not object immediately when a federal judge in Los Angeles struck down this law six years ago.

"Why didn't the government seek a stay in this court?" Rehnquist asked, bluntly revealing that he thought the first ruling was in error.

Justices Ruth Bader Ginsburg and Anthony Kennedy questioned why four so-called "performance artists" were given standing in court to challenge the law, since they had not lost grants because of it.

"This seems remote and abstract - not a concrete case," Kennedy said.

And Justice Antonin Scalia, probably the court's most conservative member, railed at the notion that taxpayers' money was used to subsidize homoerotic photographs by Robert Mapplethorpe and Andres Serrano's depiction of a cross dipped in urine.

"I thought the government doesn't have to buy Mapplethorpe, and it doesn't have to fund Mapplethorpe," Scalia said. The controversy surrounding the NEA heightened in 1989 with the news that federal funds had helped pay for exhibits of work by Mapplethorpe and Serrano.

Congressional critics assailed the arts endowment and threatened to pass laws that would forbid support specifically for obscene or sacrilegious art. As a compromise, it enacted the warning to take "decency" into account.

In 1990, when the bill was pending, the NEA's chairperson canceled solo performance awards to Los Angeles artists Tim Miller and John Fleck and New Yorkers Karen Finley and Holly Hughes. Three of the four used gay themes in their work. Finley is perhaps best known for appearing on stage covered in melted chocolate.

04-01-98