Court enters debate on arts Justices to rule on law barring public funds for indecent works; 1990 measure at issue; Supreme Court also considers disability status of HIV carriers

WASHINGTON — WASHINGTON -- The Supreme Court entered the debate over government funding of the arts yesterday, agreeing to rule on the constitutionality of a law that bars subsidies for exhibits or performances that are considered indecent.

At the center of the dispute is a 7-year-old law that Congress passed because some lawmakers were angry over federal grants for artistic exhibits by Robert Mapplethorpe, who has been condemned for his homoerotic work, and Andres Serrano, who has been accused of blasphemy against Jesus Christ.


A federal appeals court in San Francisco struck down the law last year, saying it allowed government officials to deny funding "because of the artist's political or social message or because the art or the artist is too controversial." Consequently, the appeals court said, the law violates the First Amendment.

The appeals court also said that the law was written in such vague terms that no artist could know in advance what kind of work or performance would be denied money. That raises the prospect of an arbitrary refusal to provide grants, the appeals court said.


The law's constitutionality was challenged by four people who failed to obtain funding for their "performance art" -- edgy monologues about one's own highly personal experiences or about social and political issues. The four are John Fleck of Los Angeles, Tim Miller of Santa Monica, Calif., and Holly Hughes and Karen Finley, both of New York.

The case could lead the Supreme Court to clarify how far the government may go to control private forms of expression that it subsidizes.

In an appeal seeking to reinstate the law, the National Endowment for the Arts and the Justice Department argued, "The Constitution does not bar Congress from utilizing aesthetic and similar criteria embodying notions of decency and respect for the diverse beliefs and values of the American public in awarding grants of public funds to support the arts."

The grants program, their appeal contended, is not a form of censorship but rather a program for the selection of artistic projects worthy of public funding.

Under the 1990 law, the leaders of the NEA must act to ensure "artistic excellence and artistic merit," taking into account "general standards of decency and respect for the diverse beliefs and values of the American public."

Congress passed that law after the disclosure that federal money had gone into a museum exhibit of Mapplethorpe's photographs depicting homosexual encounters and of a photo exhibit by Serrano that included the image of a crucifix immersed in a jar of urine.

The legislative move was championed by Sen. Jesse Helms, a North Carolina Republican. Helms had sought a tougher ban on questionable art but settled for a compromise with the House.

The Supreme Court is expected to hold a hearing on the law in March and to issue a decision by next summer.


Taking on another emotionally charged dispute, the court agreed yesterday to decide whether people who test HIV-positive are legally disabled and are thus protected by federal law against discrimination based on their condition.

The case involves people who have not developed full-blown AIDS but are infected with the virus that causes AIDS. A patient who has become ill with AIDS itself could more easily qualify as disabled because of a clear loss of a major physical or mental function.

A dentist in Maine, who refuses to fill cavities of HIV-positive patients in his office, and will do so only in a hospital, took the issue to the Supreme Court. The dentist, Randon Bragdon, argued that such patients are not truly disabled because their ability to function has not been impaired.

Bragdon also asserted that the courts should leave choices about treating HIV patients to the professional judgment of doctors and dentists.

A federal appeals court based in Boston ruled in March that some HIV patients suffer enough impairment to qualify as disabled. Among those patients, it said, are people who fear for their ability to have healthy children or fear to engage in intimate sexual activity.

Because reproduction is a basic human activity, an impairment of it can translate into a disability under the Americans with Disabilities Act, the appeals court said.


Other federal appeals courts have taken different views. The furthest-reaching decision on the opposite side is a ruling in August by the federal appeals court based in Richmond, Va., which decides federal law issues for a group of Atlantic states including Maryland.

The Richmond court decided that someone who has HIV infection but has no AIDS symptoms is not impaired, because "there are no diminishing effects on the individual." That decision rejected a disability claim by a Baltimore gay man with HIV, William Runnebaum. He contended that he had been fired illegally by NationsBank because of his HIV status.

Bragdon has been ordered by a federal court to stop refusing to fill cavities in his office for dental patients who are HIV-positive.

His appeal is supported by the American Dental Association, which told the court that "a clear pronouncement is needed to clarify whether dentists and other health care providers have a legal obligation to treat individuals with asymptomatic HIV-disease."

The justices will hold a hearing on Bragdon's appeal in March and will issue a decision by next summer.

Pub Date: 11/27/97