Hecate

[A.E. Brownstein]

        At first glance, this issue appears to raise an interesting anomaly
between the free exercise clause and the establishment clause. Clearly,
there has to be a believer of a religion whose religious practices are
being substantially burdened for there to be a free exercise violation. But
people who claim Establishment Clause violations typically do not belong to
the faith that is allegedly being promoted or endorsed by government.
Indeed, people who reject all religious beliefs can allege an Establishment
Clause violation.

        But I think the existence of believers, as Michael McConnell suggests, is
clearly relevant to whether there is an Establishment Clause violation,
even if it isn't dispositive of the question. I think this is true for most
interpretations of the Establishment Clause.

        If no one, including the people who serve as lawmakers and officials in
government, believes in the religion allegedly being promoted, it is
difficult to contend that the state intended to promote or endorse that
faith through the challenged artwork. Thus, to the extent that government
purpose is relevant to an Establishment Clause inquiry, the lack of
existence of believers seems relevant. Indeed, for the few political
process model advocates left today, it might be argued that the fact that a
religion has very few adherents in a community is also relevant. The
government of a community that is overwhelmingly Christian is unlikely to
commission a picture of Hecate for the purpose of promoting or endorsing
some ancient faith.

        The lack of adherents is also relevant in evaluating the effects of
government action. If you believe, as I do, that the endorsement test
primarily reflects equality values similar to those protected by equal
protection doctrine, the focus of the analysis should be on whether the
government's action favors "insider" faiths and communicates a message of
subordinate status to "outsider" religions. But this analysis clearly
presumes that faith communities exist that the government is in some sense
ranking in a religious hierarchy. It's hard to argue that the government is
identifying a non-existent faith community as having favored "insider"
status. As Michael asks, how could anyone reasonably perceive the
government to be endorsing a religion in such a case?

                                                                        Alan Brownstein
                                                                        UC Davis