High court backs curb on NEA grants, widens HIV patient protection Art subsidy law isn't censorship, O'Connor says


WASHINGTON -- The Supreme Court, saying Congress had no intention of censoring art by denying tax dollars to "indecent" displays, upheld yesterday a 1990 law that was designed to curb controversial grants by the National Endowment for the Arts.

The ruling, with just one dissent, appeared to give the government wide latitude in choosing the art it wants to subsidize, saying, "Absolute neutrality is simply inconceivable."

Rushing to finish its work and start a summer recess today, the court voted 5-4 in a separate ruling to give broad new protection against discrimination in medical care and jobs to patients who test HIV-positive but who show no signs yet of full-blown AIDS.

Six rulings were issued yesterday, leaving only three -- including two major test cases on sexual harassment -- to be issued today.

Acting on a long-running dispute that at one point nearly led Congress to abolish the NEA, the court said it could find no constitutional defect in the 8-year-old law that directed that agency, when it issues grants, to consider "general standards of decency and respect for the diverse beliefs and values of the American public."

Artists and entertainers who want public funding argued that the wording of the law was merely a code for favoring mainstream art and performances while shutting out expression that challenges tastes or morals.

The court rejected that claim. The justices conceded that Congress had acted out of displeasure with NEA grants for a homoerotic exhibit of photographs by Robert Mapplethorpe and for an exhibit that included a photo by Andres Serrano of a crucifix immersed in urine. But, writing for the majority, Justice Sandra Day O'Connor said the law that emerged was not a censorship law at all.

The law, the majority said, includes only "advisory language" and does not require the NEA to do anything but consider decency and public values, assigns no weight to the factors it lists and does not flatly ban indecent or disrespectful projects.

"The legislation was aimed at reforming [NEA grant] procedures rather than precluding speech," O'Connor said. "The criteria do not silence speakers by expressly threatening censorship of ideas."

The court said a constitutional problem might arise if the NEA intended to discriminate against a specific point of view.

Two justices who voted in favor of upholding the law, however, criticized O'Connor's main opinion, suggesting that she had taken the bite out of the law. The majority, they said, "sustains the constitutionality [of the law] by gutting it." Congress, Justices Antonin Scalia and Clarence Thomas said, did intend to assert control over the content of art, and "that is perfectly constitutional."

Justice David H. Souter dissented alone, saying that the limits Congress imposed meant that "art that disrespects the ideology, opinions, or convictions of a significant segment of the American public is to be disfavored, whereas art that reinforces those values is not."

Four performance artists had challenged the restriction. Those four use nudity, profanity, homosexual imagery, negative religious commentary, and sexually explicit exhibits in their shows.

HIV disability

The court's 5-4 ruling extending the protection of the Americans with Disabilities Act to those with HIV infection but no AIDS symptoms came in a case involving a woman in Bangor, Maine, whose dentist refused to fill a cavity in his office after discovering that she was HIV-positive.

The law protects people whose disability impairs a major life function. The court said HIV-positive patients are indeed impaired; the woman's impairment was the interference with her reproductivity, because she could pass on the virus to a sex partner or to a child if she became pregnant.

The court left to lower courts the separate issue of whether the dentist was entitled to deny treatment because he feared that the patient would infect him or others. That fear, the court stressed, must be judged by objective medical standards, not just the dentist's personal beliefs.

Other cases

The court declared by a 6-3 vote that the Fifth Amendment right to silence in a legal proceeding does not protect someone who fears prosecution in other countries. In this case, a New York man had refused to answer questions in a deportation case because he fears prosecution abroad as a Nazi collaborator.

And, dividing 5-4, the court struck down a 1992 law that required companies that have gone out of the coal business to help pay for lifetime health benefits for retired coal miners.

Pub Date: 6/26/98

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