Public Frescoe of Hecate and the Establishment Clause

[David Cruz]

On Wed, 6 Dec 2000, Will Esser wrote:

> Does the Establishment Clause only apply to religions
> that have current followers or does it apply across
> the board?  The argument would work like this:
>
> (1) The worship of Hecate was a religion at one time.
> (2) No one worships Hecate anymore.
> (3) Therefore, the depiction of Hecate on a government
> building cannot possibly give the impression of
> "endorsement" of a religion.
>
> It appears to me that the only way this argument works
> is if you assume premise two; that not one single
> person out there worships Hecate.  Otherwise, it's
> just a numbers game.

Setting aside the question whether it is accurate to describe something
that has no current supporters as a religion, today, as opposed to
something that once was a religion but is no longer, I think in some sense
it has to be a numbers game.  The Supreme Court has said that the
Constitution protects idiosyncratic religious exercise.  It can't possibly
be that if one person were to start worshipping some person, sign,
building, or other "thing" associated with some level or part of
U.S. government, then the Establishment Clause restricts the government
from vesting power in or using that person/sign/building/thing.

And I'm not sure how Rick's "damned if you do, damned if you don't"
argument (my characterization, not a quotation) would play out.  It would
seem applicable to anyone or thing:  either government is taking the
position that Abraham Lincoln, Sacagawea, the bald eagle, and Justice are
deities, or government is taking the position that they are not, ergo,
Establishment Clause violations to use those figures.  I'm not saying we
can't, but I would like to know how we could limit that argument.

And if, as Rob Weinberg advocates, we reject *any* role for current
viability of a religion, I guess we'd still have to draw the line at
future viability, as anyone (living or dead) could become an object of
worship, at least theoretically.  So, is the proposed rule that once
someone becomes a (quasi?-)divine figure, he or she is forever subjected
to Establishment limitations?  Add one more to the non-retrogression
principles ledger.

-David B. Cruz, USC Law (Cal.)