Public Frescoe of Hecate and the Establishment Clause
Paul-Finkelman at UTULSA.EDU
Thu Dec 7 00:25:35 PST 2000
Seems to me that some govt. blds. must have symbols of Greek and Roman God on
them; a helmet of mercury appeared a U.S. postage stamp in 1908 (special
delivery, what else?); does that raise an establishment issue?
The New York state court house at Borough Hall in Brooklyn NY (more or less a
block down and across the street from Brooklyn Law School) as a carving
(relief perhaps) of Moses getting the ten commandments. Is that an
establishement issue or an endorsement? I gave it as a take-home exam
question when I taught at Brooklyn Law School. Got some interesting answers.
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East Fourth Place
Tulsa, OK 74104
E-mail: paul-finkelman at utulsa.edu
David Cruz wrote:
> 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.)
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