Petition for Writ of Certiorari — Cammack v. Waihee

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——"*

Supreme Court, U.S.

fae Ss Ph ae

91-796 NOW 12 1992

No. 91-__

In The

Supreme Court of the United States

October Term, 1991

NELL A. CAMMACK, et al.,

Petitioners,

JOHN WAITHEE, et al.,

Respondents.

Petition For Writ Of Certiorari To The

United States Court Of Appeals For The

Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

KAREN A. ESSENE

(Counsel of Record)

2133 Alaeloa Place

Honolulu, Hawaii 96821

(808) 732-2192

Cart M. Varapy

American Civil Liberties

Union of Hawaii

Foundation

212 Merchant Street

Suite 303

Honolulu, Hawaii 96813

(808) 545-1722

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

oll

QUESTIONS PRESENTED

Whether the enactment of a state holiday on Good

Friday violates the Establishment Clause when the

legislature stated that the holiday was justified “in

view of the religious significance of Good Friday”?

Whether a federal court may “revise” legislative

intent by substituting its own statement of purpose

for a legis!ature’s express statement of its actual pur-

pose?

Whether the state’s observance of a legal holiday ona

day of exclusively religious significance — the day that

commemorates the crucifixion of Jesus Christ - con-

veyS a message of endorsing the Christian faith, in

violation of the Establishment Clause?

Va 4

LIST OF PARTIES

The petitioners in this case are:

The

NELL A. CAMMACK

GENIE LUCAS

DOUGLAS PAUL ROOT

CAROLYN L. STAPLETON

MICHELE WALLACE

respondents in this case are:

JOHN WAIHEE, in his capacity as Governor of

the State of Hawaii

ALFRED LARDIZABAL, in his capacity as

Director of Personnel Services of the State of

Hawaii

FRANK F. FASI, in his capacity as Mayor of the

City and County of Honolulu

JEREMY HARRIS, in his capacity as Managing

Director of the City and County of Honolulu

LORETTA K. FUKUDA, in her capacity as Direc-

tor of Civil Service of the City and County of

Honolulu

UNITED PUBLIC WORKERS, LOCAL 646,

AFSCME

HAWAII GOVERNMENT EMPLOYEES’ ASSO-

CIATION, LOCAL 152, AFSCME”

*The omission of the Hawaii Government Employees’ Associa-

tion

from the list of appellees in the reported opinion at 932

F.2d 765 (9th Cir. 1991) was inadvertent. See 673 F. Supp. 1524

(D. Haw. 1987) (complete list of parties).

ill

LIST OF PARTIES —- Continued

HAWAII STATE TEACHERS ASSOCIATION

UNIVERSITY OF HAWAII PROFESSIONAL ASSEMBLY

HAWAII FIRE FIGHTERS ASSOCIATION, LOCAL 1463,

[AFF

STATE OF HAWAII ORGANIZATION OF POLICE OFFI-

CERS

TABLE OF CONTENTS

Page

Te GEE Pe EES Es so siwcnitrnsehanssueeenes vi

CP No ocn hx a Vea NwAn de ed RR Oaee TNR 1

RN ogee shes oes cee merit ateeets a

CONSTITUTIONAL AND STATUTORY PROVI-

Pe ee rete a Pre Pee re eet ee 2

REET GOP TOO Ges ook cece cet ve tendon 2

Legislative History. ... 0.05.00. cccccccccescveteec 3

PURE TINE sigs ic vce enuen so eohwa Ns eee el 7

REASONS FOR GRANTING THE WRIT ........... y

A. Review should be granted to determine

whether the Establishment Clause requires an

examination of the specific purpose for the

enactment as opposed to a broader, general

purpose underlying the enactment........... 9

B. Review should be granted to resolve whether

the judiciary is free to “revise” legislative

PEER TERRE EET RE CEE TOO Ee tay 13

C. Review should be granted to resolve whether

preferential treatment of the religious beliefs

and practices of the dominant faith is now

| Pee ery re 15

Pe oe J Re ol ae ee le ee 19

APPENDICES

A Order and Amended Opinion of the Court of

PE, CER TS SEs cick Ce See ces A-]

B Order of the District Court, November 23,

TABLE OF CONTENTS - Continued

Page

C Order and Dissents of the Court of Appeals

(Denying Petition for Rehearing and Rejecting

Suggestion for Rehearing En Banc), August 13,

) PI rer ret rs ee SO A-107

D Statutory Provision: Hawaii Revised Statutes

TABLE OF AUTHORITIES

Page

Cases

Abington School Dist. v. Schempp, 374 U.S. 203

(TSG SF 0:90 bic evs ou eon Nese ole ee eres eee 10, 13

Bowen v. Kendrick, 487 U.S. 589 (1988)..... 9, 10,742, 13

Cammack v. Wathee, 673 F. Supp. 1524 (D. Haw.

1987), aff'd, 932 F.2d 765 (9th Cir. 1991)...... 2, 7, 14

Cammack v. Wathee, 932 F.2d 765 (9th Cir. 1991)..... passim

County of Allegheny v. ACLU, 492 U.S. 573 (1989) ...16, 18

Edwards v. Aguillard, 482 U.S. 578 (1987) .. 9, 11, 13, 15

Epperson v. Arkansas, 393 U.S. 97 (1968)... 9, 10, 12, 13

Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985) .... 18

Griswold Inn, Inc. v. State, 183 Conn. 552, 441 A.2d

8G CE9BE) ..... 6 viv cden eee up ane ee maine ale

Larson v. Valente, 456 U.S. 228 (1982)................ 18

Lynch v. Donnelly, 465 U.S. 668 (1984)............ 11, 18

Mandel v. Hodges, 54 Cal. App. 3d 596, 127 Cal.

Rotr. 266 (ISTO) |... sc oa 5 scene ee eee 14

McGowan v. Maryland, 366 U.S. 420 (1961)........ 13, 14

Stone v. Graham, 449 U.S. 39 (1981)............... i, 33

Wallace v. Jaffree, 472 U.S. 38 (1985) ..... . 9,43, 15, 16

CONSTITUTIONAL PROVISION

US. Const. Anend..1.).0..5.-2- +0 eee 2

Vii

TABLE OF AUTHORITIES - Continued

Page

STATUTORY PROVISIONS

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Pack: 165, PRS Fane. Sete. LOWS. osc ca eee ens ss 17

ee. TE Se Oe es ca ee es hea ee ee ees 2, 6

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PERE. TOU, De es 6a ok 04 os Be Ea ere 17

LecisLaTiveE MATERIALS

ee A PP Ce ee ee ere 3

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GT Pa, GE. Be a ae ccc es erases bem ees 4

TOPE Se Te os sb oe oa ns cen oe ence eee ees 5

SSOP Pe Faas We ove a ive heck be 95s Oe eee 5

SO SUNG ee WI aha va eee eee e ss Sener es at

POar Pe TEE, Tek cx veces oes eae eee poe 5

PRE PO FEO ec hae ee cee havea ncdiaeeen 6

SOD Pe, Pe, eae ove ee ets ov oe wise Cetera 6

ee ae | eS ae err rerarrre ror eeee NGF Emre a 6

SOE POW, Bicker isk co cs Fev nee es caed bie tie ee

SORE POMRe Bide Fae oasis ccs vv vse cc cin os aes cee

Viii

TABLE OF AUTHORITIES - Continued

Page

ee Se We NE ios on ee ee 6

Se SI I Ie oe ck ik dG ak oe oes 6

WO I ie NE a's 9 os ce wn cx nn oiuoes ec ueieer ork 17

SR RU Wa ens cudc enue concise uel to 17

Haw. H. Stand. Comm. Rep. No. 254 (1939),

reprinted in 1939 Haw. H.J. 890 ..................... 5

Haw. H. Stand. Comm. Rep. No. 279 (1963),

reprinted in 1963 Haw. HJ. 661 .................... 17

soa sp cia i Ea db ( SRT ee ee ee 5

lps Mig ce Tia Mik Le ee oe

Rome OUD. TSG (PIO) ow ioc vec cc ccaccccaceccce. 6

PON WM Me WEE ooo nhs a wun conecevccvscicnce, 4

ON TU MO AUMUND ons nc nc wens cccscnanvecvae: 17

Haw. S. Stand. Comm. Rep. No. 225 (1929),

reprinted in 1929 Haw. S.J. 727..................... 3

Haw. S. Stand. Comm. Rep. No. 239 (1931),

reprinted in 1931 Haw. S.J. 802-03 .................. 4

Haw. S. Stand. Comm. Rep. No. 935 (1963),

reprinted in 1963 Haw. H.J. 843 ................... 17

i eS a: 3

Letter from John A. Hamilton to Governor Joseph

B. Poindexter (Apr. 24, 1939) ......0000 000. ee

Veto Message from Governor (May 3, 1939)... ..... 5

No. 91-__

In The

Supreme Court of the United States

October Term, 1991

NELL A. CAMMACK, et al.,

Petitioners,

JOHN WAIHEE, et al.,

Respondents.

Petition For Writ Of Certiorari To The

United States Court Of Appeals For The

Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioners Nell A. Cammack, Genie Lucas, Douglas

Paul Root, Carolyn L. Stapleton, and Michele Wallace

respectfully request that a writ of certiorari issue to

review the judgment and opinion of the United States

Court of Appeals for the Ninth Circuit in this case on

August 9, 1991 (amending the opinion of April 30, 1991).

OPINIONS BELOW

The amended opinion of the court of appeals is

reported as Cammack v. Waihee, 932 F.2d 765 (9th Cir

1991), and is reprinted in Appendix A. The order and

dissents in the denial of the petition for rehearing and

suggestion for rehearing en banc are reported at 944 F.2d

466 (9th Cir. 1991) and are reprinted in Appendix C. The

opinion of the district court is reported at 673 F. Supp.

1524 (D. Haw. 1987) and is reprinted in Appendix B.

JURISDICTION

The judgment of the Court of Appeals for the Ninth

Circuit was entered April 30, 1991. Petitioners filed a

timely petition for rehearing and suggestion of rehearing

en banc on May 13, 1991; the petition was denied August

13, 1991. This Court’s jurisdiction is invoked pursuant to

28 U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Establishment Clause of the First Amendment to the

Constitution provides as follows: “Congress shall make no

law respecting an establishment of religion ....” Appendix

D contains the full text of Hawaii Revised Statutes section

8-1 (which codifies Hawaii’s annual state holidays, including

the Good Friday holiday at issue here).

STATEMENT OF THE CASE

“The holly and the ivy, jingling bells, red-nosed rein-

deer, and frosty snowmen this is not. What this case ts

about is Hawaii's endorsement, by means of a state holi-

day, of a day thoroughly infused with religious signifi-

cance alone.” A50 (emphasis in original). With these

words, Judge Nelson in her dissenting opinion below

aptly described the central issue in this case, which chal-

lenges the Good Friday holiday in Hawaii. The signifi-

cance of Good Friday was described in Griswold Inn, Inc.

v. State, 183 Conn. 552, 441 A.2d 16, 17 (1981), as follows:

Good Friday is an annual day of holiness [,] .. .

commemorat[ing] the death by crucifixion of

Jesus Christ, the founding inspiration of [the

Christian] faith, whose death is by [Christians]

believed to constitute an act of atonement for

human transgressions against [God’s] com-

mandments[.]

The religious significance of the Good Friday holy

day was not incidental to its enactment as a state holiday

in Hawaii. In fact, the twelve-year effort to establish the

Good Friday holiday was successful only when the pro-

ponents set forth persuasive religious reasons for its

enactment. At the same time, the constitutional issue

presented by this case is not unique to Hawaii. Twelve

other states have also established Good Friday as a public

holiday. See All & n.2 (citing state statutes).

Legislative History

In 1929, the Hawaii Territorial Legislature considered

a bill “to have Good Friday declared a legal holiday,” but

it was rejected for the stated reason that “there are

already enough legal holidays[.]”' In the 1931 biennial

' Haw. S. Stand. Comm. Rep. No. 225 (1929), reprinted in 1929

Haw. S.J. 727 (tabling S.B. 136); Excerpts of Record (ER) 46.

session, a virtually identical bill was introduced, but it,

too, was rejected because “no good reason for adding to

the number of Territorial holidays” was seen.? Similarly,

in the 1937 biennial session, another bill for a Good

Friday holiday was introduced and was once again

rejected.3

In 1939, however, the legislative sentiment in both

houses favored the establishment of a legal holiday on

Good Friday. The religious basis for the decision was

plainly set forth in the statement of legislative purpose:

There are now ten legal holidays in the Ter-

ritory, including Thanksgiving, plus primary

and general election days. Public sentiment is

divided on the advisability of creating Good

Friday a legal holiday. Some feel that we already

have too many holidays to the detriment of both

private and public business. On the other hand,

others feel equally strongly that good Friday[,]

being in theory at least a day of solemn religious

observance by the members of the various

churches and religious denominations|[,] should

be given legal sanction. More and more churches

are now conducting the three-hour service on that

day and many business houses are allowing

2 Haw. S. Stand. Comm. Rep. No. 239 (1931), reprinted in

1931 Haw. S.J. 802-03 (tabling H.B. 297); ER 47.

3 See 1937 Haw. H.J. 2359 (tabling Haw. H.B. 86, which

would have added “[t]he Friday immediately preceding Easter

Sunday and known as Good Friday” to the roster of holidays).

their employees to take time off for this pur-

pose. If the legislature should feel that we

should have more legal holidays than we now

have, it would seem that in view of the religious

significance of Good Friday observance of this day

would have as much justification as Thanksgiv-

ing or Christmas.

The proponents of this Bill are very sincere in

their reasons for desiring its passage... . 4

(Emphasis added.) The 1939 Good Friday holiday bill

passed unanimously in the House (29-0), by a wide mar-

gin in the Senate (11-4),5 and was sent to the governor.

The governor received many objections to the bill,°

including a letter from an officer of the Chamber of

Commerce, pointing out that not all merchants would

close on Good Friday and urging that “the present situa-

tion, whereby any employee who wishes to participate in

Good Friday services is given time off, letting it be

optional rather than legal, is the best solution.”” The

governor pocket-vetoed the bill.®

4 Haw. H. Stand. Comm. Rep. No. 254 (1939), reprinted in

1939 Haw. H.J. 890 (recommending passage of H.B. 39); ER

48-49.

5 See 1939 Haw. H.J. 899 (vote of 29-0); 1939 Haw. S.J. 1086

(vote of 11-4).

& See Governor’s Veto Message (May 3, 1939); ER 60.

7 Letter from John A. Hamilton to Governor Joseph B.

Poindexter (Apr. 24, 1939); ER 59.

8 See 1939 Haw. S.J. 1596; see also ER 60. The governor's

veto message was delivered after the legislature had

adjourned.

In 1941, during the next biennial session, the legisla-

ture unanimously passed a bill designating Good Friday

as a legal holiday.’ It became law without the governor’s

signature,'° and since that time Good Friday has been

observed as a public holiday in Hawaii."

Public expenditures in support of the Good Friday

holiday now exceed $4,250,000 per year.!? In the four

years since the instant action was filed, the state and the

county governments have spent well over $17,000,000 in

9 See 1941 Haw. H.J. 919-20 & 1362 (votes of 26-0 and 30-0

on Haw. H.B. 154); 1941 Haw. S.J. 765-66 (vote of 14-0 on the

same bill).

The bill as introduced would have created a legal holiday

on Lincoln’s Birthday (February 12), but a floor amendment

quickly restored the proposed Good Friday holiday that the

governor had pocket-vetoed after the previous session. See

1941 Haw. H.J. 899, 919. Initially, a few senators thought that a

holiday on Lincoln’s Birthday was “inadvisable” during the

same month as the existing holiday on Washington’s Birthday

(February 22). See 1941 Haw. S.J. 710; ER 52. Their concern was

entirely allayed, however, and the bill with the two new holi-

days passed both houses unanimously.

10 See 1941 Maw. H.J. 2509; 1941 Haw. S.J. 1433; Act 132,

1941 Haw. Sess. Laws.

‘| The holiday is now codified in Haw. Rev. Stat. § 8-1. See

App. D.

12 The State of Hawaii admits that it spends $3.4 Million

per year On personnel costs to observe the holiday. See ER 62.

The City and County of Honolulu admits that it spends

approximately $350,000 per year for overtime holiday pay and

another $500,000 per year for additional personnel costs to

observe the holiday. See ER 61. The costs for the other counties

are not on the record.

public funds to observe the holiday, the establishment of

which was justified “in view of [its] religious signifi-

cance.” In addition, the public observance of Good Friday

requires that state and all four county governments close

down for the day, with public access to state and county

facilities and services being denied or severely curtailed.

Proceedings Below

Petitioners Cammack, Lucas, Root, Stapleton, and

Wallace!? (Hawaii residents and taxpayers) filed suit

under 42 U.S.C. § 1983 in federal district court against the

governor, the mayor, other public officials, and public

employee unions (respondents here). Al2. Petitioners

sought a declaration that the Hawaii statute that desig-

nates Good Friday as a legal holiday is unconstitutional

as violative of the Establishment Clause of the First

Amendment to the United States Constitution and that

the public employee collective bargaining agreements are

unconstitutional to the extent that they provide for paid

leave on Good Friday. A12-A14. The district court’s juris-

diction was invoked under 28 U.S.C. § 1343(a)(3).

Holding that the Good Friday holiday does sot vio-

late the Establishment Clause, the district court granted

summary judgment for respondents. See App. B. By a

divided vote, the court of appeals affirmed, stating that

13 Lucas, a Roman Catholic, is a lay teacher in a Catholic

high school, where she is the chairperson of the theology

department. Stapleton is a United Methodist minister and a

lawyer. Wallace, also a lawyer, is a Unitarian. Cammack, a non-

believer, is a transportation planner working for the State of

Hawaii. Root is a chemist and has no religious affiliation.

the legislature’s secular purpose for establishing the good

Friday holiday was to have “another holiday,” and stat-

ing that, as to the effect of the holiday, the “aver. ze”

citizen of Hawaii would view Good Friday no differently

from Christmas. A34, A38, A48. Judge Nelson, in her

dissenting opinion below, found that the religious pur-

pose was clear from the legislature’s “perspicuous lan-

guage [justifying the holiday] ‘in view of the religious

significance of Good Friday.’” A55 (quoting the 1939

legislature).'4 In addition, the effect of the Good Friday

holiday is impermissible, Judge Nelson stated, because by

endorsing a Christian holy day remembered for its “reli-

gious significance alone,” A50, Hawaii conveys a message

to nonChristians that their religious beliefs are not wor-

thy of the same honor. A64.

Upon consideration of the petition for rehearing with

suggestion of rehearing en banc, the court of appeals

denied the petition over three dissenting opinions (writ-

ten or joined by six circuit judges). See App. C. Judge

Reinhardt, in his dissent, pointed out that the panel

majority had misapplied the secular purpose test: “all

essential elements of the statute [must be considered], not

just those of secular origin.” A114. Applied properly, the

test leads to the “inexorable conclusion” that a primary

purpose of the Good Friday holiday was “to foster the

observance of religion,” in violation of the Establishment

Clause. Id. Judge Reinhardt found the effect of the holi-

day equally impermissible, because Good Friday, which

“marks one of the holiest moments of a particular

'4 See note 4, supra, and accompanying text.

faith,” is an “occasion which Hawaii has chosen to conse-

crate and on which it has placed the official endorsement

of the state.” A119.

REASONS FOR GRANTING THE WRIT

A. Review should be granted to determine whether the

Establishment Clause requires an examination of

the specific purpose tor the enactment as opposed

to a broader, general purpose underlying the enact-

ment.

This Court’s Establishment Clause decisions make

clear that any inquiry into an act’s secular purpose begins

by identifying the purpose “that animated the adoption of

the Act.” Edwards v. Aguillard, 482 U.S. 578, 585 (1987)

(emphasis added); id. at 603 (identifying the act’s “reason

for existence”) (Powell, J., concurring); Bowen v. Kendrick,

487 U.S. 589, 603-04 (1988) (identifying the specific aims

of Congress); Epperson v. Arkansas, 393 U.S. 97, 108 (1968)

(identifying “the law’s reason for existence”). Justice

O’Connor has explained the rationale for this require-

ment as follows:

{T]he secular purpose requirement . . . serves an

important function. It reminds government that

when it acts it should do so without endorsing a

particular religious belief or practice that all citizens

do not share. In this sense, the secular purpose

requirement is squarely based in the text of the

Establishment Clause it helps to enforce.

Wallace v. Jaffree, 472 U.S. 38, 75-76 (1985) (O’Connor, 2

concurring) (emphasis added).

When the purpose for an enactment is challenged as

being religious, the proper inquiry relates not to a general

purpose underlying the enactment, but to the specific

purpose for the enactment itself. Thus, in Epperson, for

example, the prohibition against teaching the theory of

evolution in public schools was not rescued by the gen-

eral purpose of “specifyl[ing] the curriculum in

[Arkansas] public schools,” 393 U.S. at 101 n.7, because

the specific purpose was to tailor the curriculum to con-

form to “a particular religious doctrine [of] a particular

religious group,” id. at 104. Similarly, in Kendrick, the

general goal identified by Congress for the Adolescent

Family Life Act (to address the problems of adolescent

sexuality, pregnancy, and parenthood) was not the focus

of the secular purpose inquiry; instead, this Court exam-

ined the specific purpose (enlisting the aid of religious

and charitable organizations, family members, voluntary

associations, and other private sector groups in order to

increase broad-based community involvement in solving

the identified problem) and found that the purpose of the

enactment was essentially secular. 487 U.S. at 603. In

Abington School District v. Schempp, 374 U.S. 203, 223

(1963), the public school practice of reading Bible verses

and reciting a prayer in unison each morning could not

be validated by reference to general public goals such as

“promotion of moral values,” when the practice in ques-

tion was plainly a religious exercise.

The recitation of broad, general purposes, as in the

cases cited above, or the recitation of purportedly secular

purposes! or ancillary secular objectives'® is immaterial

to the secular purpose analysis, which examines the spec-

ific purpose that animated the act in question. As Judge

Reinhardt pointed out in his dissent from the order deny-

ing en banc review in this case, “every statute [could] be

described in such a way that it includes a secular pur-

pose.” A113 (emphasis in original). Given these princi-

ples, this Court has not been deterred from striking down

laws enacted for a “preeminent religious purpose.”

Edwards, 482 U.S. at 590.

In the instant case, the Hawaii legislature was per-

fectly candid about its religious purpose for enacting the

Good Friday holiday. The legislative history shows that,

from 1929 to 1937, the prevailing view in the legislature

was that Hawaii already had a sufficient number of holi-

days and that no good reason had been offered for

adding Good Friday to the list. In 1939, the proponents of

1S See Edwards, 482 U.S. at (rejecting legislature’s

stated purpose to “protect academic freedom” when purpose

of creationism act was to forbid the teaching of the theory of

evolution in public schools except in conjunction with teaching

a religious doctrine); Stone v. Graham, 449 U.S. 39, 41 (1981)

(rejecting “legislative recitation of a supposed secular pur-

pose” for posting the text of the Ten Commandments in public

school classrooms).

16 See Lynch v. Donnelly, 465 U.S. 668, 691 (1984) (noting

that a statute enacted with a preeminent religious purpose is

not saved by the mere existence of “some secular objectives” )

(O’Connor, J., concurring).

the bill acknowledged that there was some public senti-

ment opposing any more holidays but stated that, as a

day of “solemn religious observance by the members of

the various churches and religious denominations,” Good

Friday “should be given legal sanction.”'7 Public obser-

vance of the holiday was said to be justified “in view of

the religious significance of Good Friday,” and the propo-

nents declared themselves “very sincere” in their reasons

for pressing for the Good Friday holiday bill.'® With these

words, the proponents of the bill won near unanimous

support for the legislation in 1939 and achieved its enact-

ment in 1941. As Judge Nelson said in her dissenting

opinion below, the religious purpose that animated the

establishment of the Good Friday holiday could not be

more perspicuous. A55.

The majority below decided that having “another

holiday” was the relevant purpose and that that purpose

was “primary” or at least constituted “a legitimate, sin-

cere secular purpose.” A38, A34 (emphasis in original).'9

Then, having cited Bowen v. Kendrick, 487 U.S. 589 (1988),

for the proposition that the purpose of a statute is imper-

missible only if the purpose is “wholly” or “entirely”

-- religious, A29, the majority below concluded that the

secular purpose requirement was satisfied.

17 See supra note 4 and accompanying text.

18 Id.

'9 The analogy to Epperson is striking: there the Arkansas

Supreme Court had decided that the law banning the teaching

of evolution from the public school curriculum served the

secular purpose of setting the curriculum, see 393 U.S. at 101

n.7, but this Court rejected that characterization.

2 ===<=<<—<§<=—§ —

This Court’s secular purpose analysis in Kendrick

identified and analyzed the animating purpose of the

enactment in question, not broad, general purposes or

ancillary objectives. The court of appeals below, however,

not only failed to follow the analytical approach in Ken-

drick but disregarded this Court’s earlier precedents such

as Edwards, Wallace, Stone, Epperson, and Schempp. For this

reason, petitioners submit that the fundamental misun-

derstanding of the Establishment Clause evident in the

decision below demonstrates the need for plenary review

by this Court.

B. Review should be granted to resolve whether the

judiciary is free to “revise” legislative intent.

Despite finding no “religious motivation” for the

Good Friday holiday enactment, A32, the majority below

did acknowledge that “an improper purpose” might be

“gleaned” from the legislative history. A34. To remedy that

problem, the court of appeals substituted its own versions

of legislative intent for the legislature’s actual intent, as

follows: the court said that the purpose of the 1941 enact-

ment is to be found in the present-day “concerns of orga-

nized labor,” A34-A35 (citing McGowan v. Maryland, 366

U.S. 420 (1961); that the purpose was “the majority’s politi-

cal accommodation of its own religious practices,”29 A35 &

20 In fact, employees were already being accommodated

by being given time off if they “wishled] to participate in Good

Friday services” (see supra note 7 and accompanying text).

Accommodation was plainly not the legislature’s purpose.

n.15; and that the purpose was to establish “a uniform

day of rest,” A34, A44 (alluding to McGowan).

In McGowan, this Court upheld Maryland’s Sunday

closing laws, after noting the “special significance [of

Sunday] as a rest day,” a day of “family activity,” and a

day of secular import for “[p]eople of all religions and people

with no religion[.)” 366 U.S. at 451-52 (emphasis added). In

contrast, Good Friday has acquired no secular traditions

and remains an exclusively religious day.?! It is a day of

holy obligation for practicing Christians, but for “adher-

ents of other religions or nonreligious persons” it is a day

they “could not imagine honoring.” A70 (Nelson, J., dis-

senting).

Moreover, in McGowan, it was the legislature, not the

Court, that stated its purpose to ensure a “common day

of rest” for all members of the family and community.

Here, however, the court of appeals borrowed the Mary-

land legislature’s secular purpose for the 1956 Sunday

21 The district court below said that Good Friday has

“attained a partially secular character[.]” A103. Its explanation

was that for Christians, Good Friday is a holy day, but for

“Jews, Buddhists, Baha’is, and atheists,” it is a day for “hunt-

ing for gaily colored eggs [and] delivering baskets of candies

and flowers to family and friends [.]” A98. Disavowing that

notion, the court of appeals stated that it did not accept the

contention that Good Friday has become secularized. A49 n.19.

Other than the district court below, no court has found any

secularization of Good Friday. See Mandel v. Hodges, 54 Cal.

App. 3d 596, 612, 127 Cal. Rptr. 244, 254 (1976) (no evidence of

secularization “in any degree”); Griswold Inn, Inc. v. State, 183

Conn. 552, 441 A.2d 16, 21 (1981) (clearly lacks “acceptance as

a secular holiday”).

lio |

closing laws and substituted it for the Hawaii legisla-

ture’s express, preeminent religious purpose for the 1941

Good Friday holiday law. Petitioners would ask this

Court to decide whether the courts are free to discard

legislative intent and substitute their own statement for

the legislature’s statement of purpose.??

C. Review should be granted to resolve whether pref-

erential treatment of the religious beliefs and prac-

tices of the dominant faith is now deemed

permissible.

“In selecting particular state holidays, the polity does

more than honor the past; it identifies the people, events,

and values from which it draws inspiration and seeks

guidance.” A65 (Nelson, J., dissenting). The legislature’s

selection of holidays is viewed by the public as a collec-

tive expression of the community’s wish to accord special

approval of particular events and persons. As Judge

Nelson pointed out, the “fierce debates over the celebra-

tion of Martin Luther King Day attest to our own extreme

sensitivity to this issue.” Id. “By honoring a given day, the

state endorses an event as a fair reflection of its beliefs; it

establishes that event as a privileged repository of its

values.” Id. (emphasis in original). The symbolic signifi-

cance of such action is not only intentional, but inescapa-

ble.

22 This is not to say that courts should accept a “sham

secular purpose” or a purpose statement that is not “sincere.”

See Wallace, 472 U.S. at 75 (O’Connor, J., concurring); Edwards,

487 U.S. at 604. Here, nothing would suggest that the

expressed intent of the Hawaii legislature was insincere or was

a sham.

It is widely recognized t'.at, unlike Good Friday, the

observance of Christmas encompasses secular and reli-

gious celebration and that many people of many religions

(or no religion) join in its secular celebration. For that

reason, “government’s own celebration of Christmas” is

permissible as to “the holiday’s secular aspects,” but

government may not affiliate itself with the religious

message of Christmas as a holy day. County of Allegheny v.

ACLU, 492 U.S. 573, 611 (1989). Government's “respect

for religious pluralism, a respect commanded by the Con-

stitution,” id. at 610, is thus compatible with the public

observance of Christmas as a holiday. By observing Good

Friday as a public holiday, however, the State of Hawaii

commemorates the holiest day of the Western Christian

calendar,?* a day with no secular message, a day that

represents a central message of the Christian faith. The

state’s commemoration is not, and cannot be, shared by

those who, because of their religion, do not believe in the

central tenet of the Christian faith ard, therefore, cannot

accord special honor to Good Friday.

The court of appeals stated that Hawaii’s holidays

“are all selected for their importance to the citizens of

Hawaii” but nonetheless held that the holiday observance

of Good Friday is “a mere ‘acknowledgment’ of religion,”

not an endorsement. A44. In fact, however, the Hawaii

23 The Eastern Christian churches use a different eccle-

siastical calendar for determining the dates of Easter and Good

Friday, which in most years do not coincide with the dates as

calculated by the Western Christian churches. Griswold Inn, 441

A.2d at 18.

legislature has distinguished days that are merely worthy

of “acknowledgment” from those that are truly worthy of

holiday recognition ard concomitant public observance at

considerable public expense. In 1963, when the legisla-

ture had considered a bill introduced “to honor the birth-

day of Gautama Buddha by establishing April 8 as a State

holiday,”?4 the legislature soon amended the bill to delete

the proposed holiday status,2° and then recommended

Buddha Day as worthy of public acknowledgment in

recognition of its “tremendous” importance® to the

“thousands of people in the State of Hawaii” who cele-

brate Buddha Day each year.?” Now the acknowledgment

of Buddha Day lies in a dusty statute where it remains

little noticed.*® In contrast, the public is reminded each

year of the preferential place given to Good Friday, which

commemorates the crucifixion of Jesus Christ, the reli-

gious event that is central to the Christian faith itself.

Endorsement is “a message to nonadherents that they

are outsiders, not full members of the political commu-

nity, and an accompanying message to adherents that

24 Haw. H. Stand. Comm. Rep. No. 279 (1963), reprinted in

1963 Haw. H.J. 661 (recommending passage of H.B. 1038).

25 Haw. S. Stand. Comm. Rep. No. 935 (1963), reprinted in

1963 Haw. H.J. 843 (recommending passage of H.B. 1038 as

amended).

6 Id.

27 Act 162, 1963 Haw. Sess. Laws (codified as Haw. Rev.

Stat. § 8-4. See ER 44, 56.

28 See Haw. Rev. Stat. § 8-4. Similarly, one of the holy days

of the Baha’i faith is noted in Haw. Rev. Stat. § 8-4.5.

they are insiders, favored members of the political com-

munity.” Lynch v. Donnelly, 465 U.S. at 689 (O’Connor, J.,

concurring). Here, an objective observer “acquainted

with the text, legislative history, and implementation of

the statute,” Wallace, 472 U.S. at 76 (O’Connor, J., concur-

ring), would receive a message of endorsement because

of the legislative history of the holiday and the millions

of taxpayer dollars expended each year to implement the

holiday, coupied with the annual cessation of public busi-

ness, in order for the state to accord a special place of

honor to a Christian holy day of atonement, a day with-

out any form of secular celebration that other members of

the community might share.

This Court recognizes “the bedrock Establishment

Clause principle that, regardless of [the earlier] history

[of our nation], government may not demonstrate a pref-

erence for a particular faith. ...” County of Allegheny, 492

U.S. at 605. ” ‘The clearest command of the Establishment

Clause is that one religious denomination cannot be offi-

cially preferred over another.’” Id. (quoting Larson v.

Valente, 456 U.S. 228 (1982); see also Estate of Thornton v.

Caldor, Inc., 472 U.S. 703, 709-10 & n.9 (1985) (preferential

treatment for sabbath observers held impermissible). One

of the questions put to this Court is whether the court of

appeals was correct in holding that the state’s clear dem-

onstration of its preference for the beliefs and practices of

the Christian faith is now deemed permissible.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

KAREN A. ESSENE

(Counsel of Record)

2133 Alaeloa Place

Honolulu, Hawaii 96821

(808) 732-2192

Cart M. Varapy

American Civil Liberties

Union of Hawaii

Foundation

212 Merchant Street, Suite 303

Honolulu, Hawaii 96813

(808) 545-1722

Counsel for Petitioners

Dated: November 12, 1991

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

)

Nett A. CAmMMack; GENIE Lucas; )

DoucLas PAUL Root; CAROLYN L. )

STAPLETON; MICHELE WALLACE, ) No. 87-15073

Plaintiffs-Appellants, D.C. No.

V. ) CV-87-0260-ACK

Joun W [sic]. Wainer, in his capacity ) ORDER AND

as Governor of the State of Hawaii; AMENDED

OPINION

ALFRED LARDIZABAL, in his capacity

as Director of Personnel Services of

the State of Hawaii; Frank F. Fasi,

in his capacity as Mayor of the City

& County of Honolulu; Jeremy Harris,

in his capacity as Managing Director

of the City & County of Honolulu;

Loretta K. Fuxkupba, in her capacity as

the Director of Civil Service of the

City & County of Honolulu; UNitep

Pustic Workers, Loca. 646, AFSCME;

[Hawat GOVERNMENT EMPLOYEES’

ASSOCIATION, LocaL 152, AFSCME;]

Hawai STATE TEACHERS ASSOCIATION;

UNIVERSITY OF HaAwaltl PROFESSIONAL

Assemsy [sic]; HAwau Fire FIGHTERS

ASSOCIATION, Loca. 1463, IAFF;

STATE OF HAWAII ORGANIZATION OF

Povice OFFICERS,

Deferndants-Appellees.

i A A A a a Ld a a La Le a a a a a a a

Appeal from the United States District Court

for the District of Hawaii

Alan C. Kay, District Judge, Presiding

Argued and Submitted

November 14, 1988 — Honolulu,

Filed April 30, 1991

Amended August 9, 1991

Before: Dorothy W. Nelson, Diarmuid F. O’Scannlain

and Stephen S. Trott, Circuit Judges.

Opinion by Judge O’Scannlain;

Dissent by Judge D. W. Nelson

SUMMARY

Constitutional Law

Affirming a district court grant of summary judg-

ment, the court of appeals held that a Hawaii statute

declaring Good Friday a state holiday was constitutional.

Since 1941, the State of Hawaii has, by legislative

declaration, observed Good Friday as a state holiday. By

providing a state holiday, the statute in question has the

fiscal impact that many state and local government

offices are closed, and many state and local government

employees do not report to work. Hawaii's public collec-

tive bargaining law mandates that the terms and condi-

tions of public employment be determined through a

collective bargaining process. The number and dates of

paid leave days are among the mandatory subjects of

collective bargaining. Good Friday is included as one

such paid leave day. Appellants Nell A. Cammack and

others, taxpayers and residents of the state, challenged

the statute in question alleging that setting apart Good

Friday as a state holiday violated both the establishment

clause of the first amendment of the federal constitution

and the state constitution. Appellants also sought a decla-

ration that the state and city collective bargaining agree-

ments were unconstitutional because they provided for

paid leave on Good Friday. The district court granted

summary judgment in favor of the government.

[1] Initially, the court considered whether appellants,

as state and municipal taxpayers, had properly alleged an

injury sufficient to endow them with taxpayer standing to

challenge the Good Friday public holiday. This required

an examination of the injury requirements that pertain to

each relevant form of taxpayer standing - state and

municipal. [2] The direct injury required by Doremus is

established when the taxpayer brings a “good-faith pock-

etbook action;” that is, when the challenged statute

involves the expenditure of state tax revenues. [3] While

the Ninth Circuit has not previously ruled on the differ-

ent injury requirements, if any, for municipal taxpayer

standing, the court concluded that municipal taxpayer

standing simply required the “injury” of an allegedly

improper expenditure of municipal funds, and in this

way mirrored the court’s threshold for state taxpayer

standing. [4] Here, appellants’ had standing because they

set forth their status as state and municipal taxpayers and

specifically stated the amount of funds appropriated and

allegedly spent by the taxing governmental entities as a

result of the Good Friday holiday. [5] The court rejected

the government’s argument that taxpayers as such cannot

have standing to challenge the statute in question

because the bare declaration of Good Friday as a state

holiday does not, standing alone, involve any expendi-

ture of tax revenues. Legislative enactments are not the

only government activity that the taxpayer may have

standing to challenge. The taxpayers’ allegations identi-

fied an expenditure of public funds sufficiently related to

appellants’ constitutional claim. They also established

causation and redressability.

[6] The court noted that the Supreme Court has

recently stated that the Establishment Clause means that

government may not promote or affiliate itself with any

religious doctrine or organization. However, that clause

permits government some latitude in recognizing and

accommodating the central role religion plays in this

society. [7] As such, the court rejected the government’s

contention that Marsh controlled the disposition of this

case. Although Hawaii's recognition of Good Friday

stems back to its days as a territory, nonetheless it could

not be said that it was deeply embedded in the fabric of

the state as was legislative prayer in Marsh.

[8] The challenged statute had to satisfy all three

prongs of the Lemon test to comport with the establish-

ment clause. [9] The purpose prong is clearly violated

when there is no legitimate secular purpose for the legis-

lation. [10] A statute will fail this prong only if it is

motivated wholly by an impermissible purpose. [11]

However, in reviewing a challenged statute for a secular

purpose, the court is reluctant to attribute unconstitu-

tional motives to the states, particularly when a plausible

secular purpose for the state’s program may be discerned

from the face of the statute. [12] An examination of the

legislative history surrounding Hawaii’s Good Friday law

demonstrated that the primary concern motivating selec-

tion of the holiday was simply timing and that the legisla-

ture’s consideration of earlier attempts to have Good

Friday declared a public holiday were devoid of sectarian

influences. [13] The court agreed with the district court’s

conclusion that the primary purpose of the law was to

have more legal holidays.

[14] The most ardent proponents of the statute in this

litigation were the labor unions who had incorporated

the statutory holidays into their collective bargaining

agreements with the state and local governments. This

was a strong indicant that the purpose animating the

challenged act was not so much state sponsorship of

religion as state sensitivity to the concerns of organized

labor.

[15] The court did not think it was constitutionally

significant that Hawaii selected a day of traditional

Christian worship, rather a neutral date, for its spring

holiday once it identified the need. [16] The court con-

cluded there was nothing impermissible about consid-

ering for holiday status days on which many people

choose to be absent from work for religious reasons. That

the state legislature was able to accomplish its secular

purpose and at the same time accommodate the wide-

spread religious practices of its citizenry was hardly a

reason to invalidate the statute under the purpose prong

of the Lemon test.

[17] The court next considered whether the Good

Friday holiday violated the second prong of the Lemon

test. This required examining whether the primary effect

of the statute was the advancement of religion. [18] Given

A6é

that the evidence in this case indicated that large

numbers of Hawaiians observe Good Friday, the legisla-

ture could not be faulted for not selecting a different

spring day for a common day of rest. That the special

status of Good Friday derives from its religious origin

was no more relevant than Sunday’s status as the sabbath

for the dominant Christian sects. [19] Evidence that

Hawaiians used this day for shopping and pleasure out-

ings indicated that Hawaii’s Good Friday holiday, at least

at this late day, fifty years after enactment, could not be

regarded as an endorsement of religion any more than

Sunday closing laws could. [20] The breadth of impact of

Hawaii's statute, on its face and by its incorporation into

the collective bargaining agreements, contributed to the

conclusion that the statute’s effect was simply the cre-

ation of a paid leave day for all state employees covered

by the collective bargaining agreements, regardless of

individual beliefs. The paid leave was for the entire day

and not only for the three hours associated with the

traditional Christian observance of Good Friday.

[21] Good Friday’s mere placement on the roll of

public holidays, along with other important days of secu-

lar and religious significance, diminished the likelihood

of an “endorsing” effect. The government’s action might

best be termed a mere “acknowledgment” of religion.

Closing state offices on that day simply acknowledged

Good Friday’s status as a holiday observed widely

enough that the secular purpose of establishing a uniform

day of rest was appropriately achieved by selecting it.

[22] The context of the Good Friday holiday, a minimal

accommodation of the religious practices of some Hawai-

ians, decreased the likelihood of a public perception of

endorsement. Consequently, the statute satisfied the

effect prong of the Lemon test.

[23] The third prong of the Lemon test required exam-

ination of whether the Hawaii statute led to an excessive

entanglement with religion. [24] In the case of Hawaii's

Good Friday holiday, to the extent that the actual date of

the holiday would be determined by resort to church

calendars, any such entanglement would surely not be

the kind of comprehensive and enduring entanglement

the first amendment prohibits. [25] In addition, although

political divisiveness has been considered in establish-

ment clause cases, it has never been relied on as an

independent ground for holding a government practice

unconstitutional. Thus, the Hawaii statute satisfied the

entanglement prong of the Lemon test.

[26] The Hawaii law did not require or endorse any

religious activity, and the only public expenditure associ-

ated with the holiday was the continued pay accrued by

public employees. The court was persuaded that nothing

more was “established” by the statute than an extra day

of rest for a weary public labor-force.

Dissenting, Judge Nelson stated that the holly and

the ivy, jingling bells, red-nosed reindeer, and frosty

snowmen this case was not. What this case was about was

Hawaii’s endorsement, by means of a state holiday, of a

day thoroughly infused with religious significance alone.

Because Judge Nelson believed that such a state establish-

ment of religion violated both the purpose and effects

prongs of Lemon, she strongly dissented.

COUNSEL

Kirk Cashmere and Karen A. Essene, American Civil

Liberties Union, Honolulu, Hawaii, for plaintiffs-appel-

lants.

Steven S. Michaels, Deputy Attorney General, Honolulu,

Hawaii, for defendant-appellee, State of Hawaii.

Danny J. Vasconcellos, Honolulu, Hawaii, for defendant-

appellee United Public Workers, Local 646, AFSCME and

Hawaii Government Employees’ Association, Local 152,

AFSCME.

Vernon Yu and T. Anthony Gill, Gill, Park, Park & Kim,

Honolulu, Hawaii, for defendant-appellee Hawaii State

Teachers Association and University of Hawaii Profes-

sional Assembly.

ORDER

The opinion filed April 30, 1991, slip op. 5347, is

amended as follows:

1. On page 5354 of the slip opinion, replace the

word “eleven” on line 2 with “twelve” and insert “North

Carolina,” after “Mexico,” on line 4.

2. On page 5354 of the slip opinion, insert “N.C.

Gen. Stat. § 103-4(a)(8) (Supp. 1990);” before “N.D. Cent.

Code” on line 8 of footnote 2 (the last line of the page).

3. On page 5355 of the slip opinion, delete “See also

N.C. Gen. Stat. § 103-4(a)(8) (recognizing Easter Monday

_——

as a North Carolina state holiday).” from lines 9-11 of

footnote 2 (lines 1-3 on page 5355).

4. On page 5371 of the slip opinion, delete the word

“originally” from lines 9-10 of the text on the page.

5. On page 5371 of the slip opinion, delete “why the

legislature ultimately opted only for Good Friday” from

lines 12-13 of the text on the page, and replace with the

following: “that the committee was most interested in the

timing of the proposed new holidays”.

6. On page 5371 of the slip opinion, after “1941

Haw. Sen. J. 710,” on line 22 of the text on the page, insert

the following sentences: “Nothing in the legislative his-

tory concerning the 1941 bill suggests a religious motiva-

tion for its ultimate passage. Indeed, the legislature's

approval of both proposed holidays and the governor's

expressed opposition, because “the holidays were getting

a bit thick about that time of year,” betray no particular

interest in the secular or sectarian origins of either day.”

The pending petition for rehearing and suggestion

for rehearing en banc will be addressed in a separate

order.

OPINION

O’SCANNLAIN, Circuit Judge:

We are asked to decide the constitutionality of a

Hawaii statute declaring Good Friday a state holiday. Our

task is not as simple as it might appear.

Ald

In 1941, the Territory of Hawaii enacted a bill declar-

ing that Good Friday, the Friday preceding Easter Sunday,

shall be “set apart and established as [a] territorial holi-

day[ }.” Act effective Apr. 30, 1941, No. A-1 [sic], § 1, 1941

Haw. Sess. Laws 1. Upon statehood, the legislation was

ratified and now appears as part of Hawaii Revised Stat-

utes section 8-1, which designates Hawaii state holidays.'

' Section 8-1 in its entirety provides as follows:

§ 8-1 Holidays designated. The following days of each

year are set apart and established as state holidays:

The first day in January, New Year’s Day;

The third Monday in January, Dr. Martin Luther

King, Jr., Day;

The third Monday in February, Presidents’ Day;

The twenty-sixth day in March, Prince Jonah

Kuhio Kalanianaole Day;

The Friday preceding Easter Sunday, Good Fri-

day;

The last Monday in May, Memorial Day;

The eleventh day in June, King Kamehameha |

Day;

The fourth day in July, Independence Day;

The third Friday in August, Admission Day;

The first Monday in September, Labor Day;

The eleventh day in November, Veterans’ Day;

(Continued on following page)

All

Good Friday has thus been a public holiday in Hawaii for

fifty years. Good Friday is also a public holiday in twelve

other states: Delaware, Florida, Georgia, Indiana, Louisi-

ana, Maryland, New Jersey, New Mexico, North Carolina,

North Dakota, Tennessee, and Wisconsin.?

Hawaii's section 8-1 appropriates no funds to carry

out its purposes. By providing for state holidays, how-

ever, the statute has at least the fiscal impact that many

(Continued from previous page)

The fourth Thursday in November, Thanksgiv-

ing Day;

The twenty-fifth day in December, Christmas

Day;

All election days, except primary and special

election days, in the county wherein the election is

held;

Any day designated by proclamation by the

President of the United States or by the governor as

a holiday.

Haw. Rev. Stat. § 8-1 (Supp. 1989).

2 See Public Serv. Co. v. Catron, 98 N.M. 134, 135, 646 P.2d

561, 562 (1982) (construing N.M. R. App. P. 23(a) (Civ.)); Del.

Code Ann. tit. 1, § 501 (Supp. 1988); Fla. Stat. Ann.

§ 683.01(1)(h) (West 1990); Ga. Code Ann. § 1-4-1(a) (authori-

zing Governor to declare April 26 a state holiday or substitute

in another traditional day of worship); Ind. Code § 1-1-9-1(a)

(Supp. 1990); La. Rev. Stat. Ann. § 1:55 E.1(a) (West Supp.

1990); Md. Ann. Code art. 1, § 27(a)(6) (Supp. 1990); N.J. Stat.

Ann. § 36:1-1 (West Supp. 1990); N.C. Gen. Stat. § 103-4(a)(8)

(Supp. 1990); N.D. Cent.-Code § 1-03-01(4) (1975); Tenn. Code

Ann. § 15-1-101 (1987); Wis. Stat. Ann. § 895.20 (West Supp.

1989). The New York Stock Exchange also adjourns for Good

Friday. See 50 Fed. Reg. 41,283 n.3 (1985) (noting proposal to

open on Good Friday).

Al2

state and local government offices are closed and many

state and local government employees need not report to

work. Furthermore, in 1970, the Hawaii Legislature

enacted a public collective bargaining law which man-

dated that the terms and conditions of public employ-

ment be determined through a collective bargaining

process. The statute recognized that “joint decision-mak-

ing [between public employees and their employers] is

the modern way of administering government.” Id.

§ 89-1. The number and dates of paid leave days are

among the mandatory subjects of collective bargaining.

All collective bargaining agreements currently in effect

between public employees and their employers provide

for numerous paid leave days, either expressly or

through incorporation of section 8-1. Good Friday is

included as one such paid leave day. These collective

bargaining agreements cover approximately sixty-five

percent of Hawaii’s public employees.

Nell A. Cammack, Genie Lucas, Douglas Paul Root,

Carolyn L. Stapleton, and Michele Wallace, Hawaii tax-

payers and residents, filed suit under 42 U.S.C. § 1983 in

federal district court against the Governor of the State of

Hawaii, the Mayor of the City and County of Honolulu,

other officials, and public employee organizations (collec-

tively called “government”), seeking declaratory relief

and attorney fees.* They allege that the Hawaii statute

3 Because the parties have not briefed the point, we

express no opinion on the efficacy of bringing an establishment

(Continued on following page)

Al13

setting apart Good Friday as a state holiday violates both

the establishment clause of the first amendment of the

United States Constitution and article 1, section 4 of the

Hawaii State Constitution.4 Appellants also seek a

(Continued from previous page)

clause challenge under section 1983. We note that this route

has been traveled before without exciting controversy (or even

comment). See, e.g., Marsh v. Chambers, 463 U.S. 783, 785 (1983)

(simply noting that establishment clause challenge was

brought under section 1983); ACLU v. County of Allegheny, 842

F.2d 655, 656-57 (3d Cir. 1988) (same), aff'd in part and rev'd in

part, 492 U.S. 573 (1989). Presumably, a successful challenge

here would result in an award of attorney fees. See 42 U.S.C.

§ 1988 (1988).

4 It appears that the protections afforded by both are co-

extensive. See Koolau Baptist Church v. Department of Labor, 68

Haw. 410, 718 P.2d 267 (1986) (applying first amendment estab-

lishment clause Lemon test to claim brought under state and

federal constitutions); Op. Haw. Att’y Gen. No. 85-25 (Nov. 15,

1985) (analyzing validity of state license of church-sponsored

day care programs under the Lemon test). Compare U.S. Const.

amend. I (“Congress shall make no law respecting an establish-

ment of religion”) with Haw. Const. art. I, § 4 (“No law shall be

enacted respecting an establishment of religion”). In general,

Hawaiian courts resolving cases involving religious freedoms

look to first amendment principles and authorities. See, e.g.,

Dedman v. Board of Land & Natural Resources, 69 Haw. 255, 740

P.2d 28 (1987), cert. denied, 485 U.S. 1020 (1988); State v.

Andrews, 65 Haw. 289, 651 P.2d 473 (1982); Medeiros v. Kiyosaki,

52 Haw. 436, 478 P.2d 314 (1970); State v. Blake, 5 Haw. App.

411, 695 P.2d 336 (1985). The state’s high court also relies upon

first amendment jurisprudence to resolve free speech claims

brought under the state constitution. See, e.g., State v. Hawkins,

64 Haw. 499, 643 P.2d 1058 (commercial speech), cert. denied,

459 U.S. 824 (1982); State v. Bloss, 64 Haw. 148, 637 P.2d 1117

(1981) (same), cert. denied, 459 U.S. 824 (1982); State z

(Continued on following page) ~

Al4

declaration that the state and city collective bargaining

agreements are unconstitutional to the extent that they

provide for paid leave on Good Friday.

The district court granted summary judgment in

favor of the government, determining that the appellants

had standing to bring the action but upholding section

8-1 and the collective bargaining agreements as constitu-

tional. See Cammack v. Waihee, 673 F. Supp. 1524 (D. Haw.

1987). This appeal followed.

The government contends that this court lacks juris-

diction because appellants’ notice of appeal is defective

and because appellants do not have standing. We exam-

ine each argument in turn.

(Continued from previous page)

Bumanglag, 63 Haw. 596, 634 P.2d 80 (1981) (pornography);

State v. Manzo, 58 Haw. 440, 573 P.2d 945 (1977) (same); Cahill v.

Hawaiian Paradise Park Corp., 56 Haw. 522, 543 P.2d 1356 (1975)

(defamation).

> The government also argues that the district court

improperly declined to abstain from deciding this case.

Abstention in some instances may be appropriate. See Burdick

v. Takushi, 846 F.2d 587, 588 (9th Cir. 1988) (abstention is

warranted when proper resolution of the state law question at

issue is uncertain; a definitive ruling on the state issue poten-

tially obviates the need for constitutional adjudication by the

federal courts; the complaint touches upon a sensitive area of

social policy). However, abstention from exercising federal

(Continued on following page)

Al15

Appellants’ notice of appeal reads, in pertinent part:

“Notice is hereby given that Plaintiffs above-named

hereby appeal .. . the final judgment .. . ” Notice of

Appeal, Cammack v. Waihee, Civil No. 87-0260 (D. Haw.

Dec. 4, 1987). The compound adjective “above-named”

apparently refers to the notice’s caption, which states:

“Nell A. Cammack, et al., Plaintiffs, vs. John Waihee, et

al., Defendants.” Id.

Federal Rule of Appellate Procedure 3(c) provides

that a notice of appeal “shall specify the party or parties

taking the appeal.” In Torres v. Oakland Scavenger Co., 487

U.S. 312 (1988), the Supreme Court held that courts “may

not waive the jurisdictional requirements of Rules 3 and

4, even for ‘good cause shown.’ ” Id. at 317. In that case,

Torres, one of sixteen plaintiffs, had inadvertently been

omitted from the list of appellants in the notice of appeal.

Id. at 313; see id. at 323 (Brennan, J., dissenting) (noting

that the other fifteen plaintiffs were listed by name as

appellants). The Court concluded that Torres had not

satisfied the jurisdictional requirements for maintaining

(Continued from previous page)

jurisdiction is the exception. See Colorado River Water Conserva-

tion Dist. v. United States, 424 U.S. 800, 813 (1976) (“The doc-

trine of abstention, under which a District Court may decline

to exercise or postpone the exercise of its jurisdiction, is an

extraordinary and narrow exception to the duty of a District

Court to adjudicate a controversy properiy before it.”) (quota-

tion omitted). Here, there appears to be no likelihood of a

different result under the state constitution’s establishment

clause. See supra note 4; see also Cammack, 673 F. Supp. at

1528-29 (finding no likelihood of a different result).

Al6

an appeal, because “he was never named or otherwise

designated, however inartfully, in the notice of appeal.”

Id. at 317. The use of the term “et al.” in the notice of

appeal was insufficient to indicate Torres’ intent to

appeal, because such a vague designation would not put

the appellee or court on notice that Torres was indeed an

appellant. See id. at 317-18.

In a recent case tracking more closely the facts of the

controversy before us, this court ruled that a bare refer-

ence to “defendants” in the body of the notice, coupled

with use of “et al.” in the caption, constituted sufficient

notice that all defendants sought appeal of the district

court’s judgment.® See National Center for Immigrants’

Rights, Inc. v. INS, 892 F.2d 814 (9th Cir. 1989) (per cur-

iam). Where no names were listed in the body of the

notice, we held, the intention to include all of the group

of “defendatns” in the appeal was clear. See id. at 816-17.

If only some of the defendants had intended to appeal,

the body of the notice would likely have indicated that

“certain defendants” were appealing, or would have

listed the specific appellants. Id. at 817; see also Ford v.

Nicks, 866 F.2d 865, 869-70 (6th Cir. 1989) (use of “et al.”

in caption and indication that “the defendants” were

appealing in the body of the notice sufficient to give

notice that all defendants were appealing), overruled,

Minority Employees v. Tennessee Dep't of Employment Secu-

rity, 901 F.2d 1327 (6th Cir. 1990) (en banc).

tiffs” for the purposes of becoming “appellants” before this

court.

Al17

As in National Center for Immigrants’ Rights, Inc., the

notice of appeal in this case is sufficiently clear to alert

the court and defendants that all plaintiffs are seeking to

appeal. There is no Rule 3(c) jurisdictional bar to this

appeal, and we decline the government’s invitation to

dismiss the appeal.”

A more difficult question is whether the appellants

have standing to maintain this action in federal court.

The original complaint alleges each plaintiff to be a citi-

zen of the State of Hawaii, a resident of the City and

County of Honolulu, and a taxpayer to each of these

entities. Complaint 2-3, Cammack v. Wathee, Civil No.

87-0260 (D. Haw. April 6, 1987). The complaint’s allega-

tions include the assertion that $3.4 million in state tax

revenues and $850,000 in city tax revenues are expended

on the holiday. See id. at 7.

The district court held that the plaintiffs had state

taxpayer standing to challenge the Hawaii statute in fed-

eral court. See Cammack, 673 F. Supp. at 1527-28. The

government argues that the district court erred. The dis-

trict court did not reach the question of municipal tax-

payer standing, but the issue is squarely presented on

this record. We consider whether the plaintiffs below

(and appellants here) have either state or municipal tax-

payer standing to pursue this action in federal court.

? Even if we were to read the notice of appeal more

narrowly, the designation of “Nell A. Cammack” in the caption

would be sufficient to preserve her appeal. See National Cente?

for Immigrants’ Rights, Inc., 892 F.2d at 816 n.2

A18

[1] THe bedrock requirement for standing is that the

challenger suffer “injury.” We first consider whether

appellants, as state and municipal taxpayers, have prop-

erly alleged an injury sufficient to endow them with

taxpayer standing to challenge the Good Friday public

holiday. This requires an examination of the injury

requirements which pertain to each relevant form of tax-

payer standing - state and municipal.

[2] The seminal state taxpayer standing case is Dor-

emus v. Board of Education, 342 U.S. 429 (1952). In that

case, the Supreme Court explained that a state taxpayer

has standing to challenge a state statute when the tax-

payer is able to show that he “ ‘has sustained or is imme-

diately in danger of sustaining some direct injury as the

result of [the challenged statute’s] enforcement.’ ” Id. at

434 (quoting Massachusetts v. Mellon, 262 U.S. 447, 488

(1923) (also known as Frothingham v. Mellon)). The direct

injury required by Doremus is established when the tax-

payer brings a “good faith pocketbook action”, that is,

when the challenged statute involves the expenditure of

state tax revenues. Hoohuli v. Ariyoshi, 741 F.2d 1169, 1178

(9th Cir. 1984) (pleadings must “set forth the relationship

between taxpayer, tax dollars, and the allegedly illegal

government activity”) (citing Doremus); see also Reimers v.

State of Oregon, 863 F.2d 630, 632 n.4 (9th Cir. 1988) (no

state taxpayer standing where taxpayer does not chal-

lenge the disbursement of state funds) (citing Doremus).

However, Hoohuli, the leading case on this issue in the

circuit, does not require that the taxpayer prove that her

Al9

tax burden will be lightened by elimination of the ques-

tioned expenditure. See Minnesota Fed’n of Teachers v. Ran-

dall, 891 F.2d 1354, 1357 (8th Cir. 1989) (following

Hoohuli); cf. District of Columbia Common Cause v. District

of Columbia, 858 F.2d 1, 5 (D.C. Cir. 1988) (injury redressed

by elimination of expenditure, rather than by decrease in

taxation).

[3] This court has not previously ruled on the differ-

ent injury requirements, if any, for municipal taxpayer

standing.® It seems to us, however, that the Doremus

requirement of a pocketbcok injury applies to municipal

taxpayer standing as well as to state taxpayer standing.

Doremus itself, while treating the specific question of state

taxpayer standing, quoted a municipal taxpayer standing

case for the proposition that a direct injury was necessary.

See Doremus, 342 U.S. at 434 (quoting Massachusetts

(Frothingham), 262 U.S. at 448). The Court in Doremus then

harmonized its announced rule with a school district

taxpayer case. See id. (discussing Everson v. Board of Educ.,

330 U.S. 1 (1947) (assuming standing for school district

taxpayer challenge of school board expenditures for

transportation of parochial school students)). Subsequent

cases have made clear that municipal taxpayer standing

8 In Grove v. Mead School District No. 354, 753 F.2d 1528 (9th

Cir.), cert. denied, 474 U.S. 826 (1985), an establishment clause

case, we observed that the United States Supreme Court had at

least recognized different rules regarding federal, state, and

municipal taxpayer standing in various settings. See id. at 1532.

We did not take that opportunity to compare the Doremus

requirement of a pocketbook injury for state taxpayer standing

and the Frothingham requirement of a municipal expenditure

for municipal taxpayer standing. /d.

A20

is only available when there is an expenditure of munici-

pal funds challenged; courts in other circuits often have

applied Doremus-like language to express this rule. See, e.g.,

District of Columbia Common Cause, 858 F.2d at 4 (explicitly

applying the Doremus rule to municipal taxpayers); Free-

dom From Religion Found., Inc. v. Zielke, 845 F.2d 1463,

1469-70 (7th Cir. 1988) (municipal taxpayers have stand-

ing to challenge the improper use of tax revenues but no

standing where there has been no expenditure of city

funds); Hawley v. City of Cleveland, 773 F.2d 736, 741-42

(6th Cir. 1985) (municipal taxpayers may enjoin improper

municipal expenditures), cert. denied, 475 U.S. 1047 (1986);

Donnelly v. Lynch, 691 F.2d 1029, 1031 (1st Cir. 1982)

(“municipal taxpayers .. . have standing to sue to chal-

lenge allegedly unconstitutional use of their tax dollars”),

rev'd on other grounds, 465 U.S. 668 (1984). In fact, even

those who have taken a dimmer view on the breadth of

state taxpayer standing than this court have recognized

that municipal taxpayer standing requires no more injury

than an allegedly improper municipal expenditure. See,

e.g., ASARCO, Inc. v. Kadish; 490 U.S. 605, 612 (1989)

(Kennedy, J.) (distinguishing the standing requirements

for municipal taxpayers from those for state taxpayers,

who must have a “direct injury” like that required of

federal taxpayers)’; Taub v. Commonwealth of Kentucky, 842

* In this portion of the opinion, which was otherwise

written for an unanimous eight-justice Court, Justice Kennedy

was able to garner only four votes; the other four justices

expressiy disavowed Justice Kennedy’s discussion of the injury

aspect of state taxpayer standing. See 109 S.Ct at 2053-54 (Bren-

nan, J., concurring). In Bell v. City of Kellogg, 922 F.2d 1418 (9th

(Continued on following page)

A21

F.2d 912, 917-19 (6th Cir.) (rejecting Hoohuli and restrict-

ing state taxpayer standing in non-establishment clause

cases to that available to federal taxpayers, while leaving

the municipal taxpayer standing rules unchanged), cert.

denied, 488 U.S. 870 (1988); Donnelly, 691 F.2d at 1031 (the

restrictive view of federal taxpayer standing may apply

to state taxpayer standing as well, but not to municipal

taxpayer standing). Thus, we conclude that municipal

taxpayer standing simply requires the “injury” of an

allegedly improper expenditure of municipal funds, and

in this way mirrors our threshold for state taxpayer

standing.

Our next inquiry is whether appellants have, in fact,

established the requisite “pocketbook” injury. In Hoohuli,

state taxpayers challenged a Hawaiian program which

was designed to disburse benefits to state residents who

were descendants of the aboriginal inhabitants of the

islands. The program, established pursuant to an amend-

ment to the state constitution, involved the expenditure

of tax dollars through an administrative division (the

Office of Hawaiian Affairs) created to implement the

amendment. Hoohuli, 741 F.2d at 1172. The taxpayers

“aa

protested the “ ‘appropriating, transferring, and spend-

ing. .. . of taxpayers’ money from the General Fund of

the State Treasury. ...’” Id. at 1180. The taxpayers

(Continued from previous page)

Cir. 1991), we implied some sympathy toward Justice Ken-

nedy’s view. See id. at 1423 (citing Justice Kennedy’s opinion

for state taxpayer standing principles). However, we also made

clear that Hoohult remained the controlling circuit precedent.

See id. (citing Hoohuli). Bell should not be interpreted as alter-

ing the law of this circuit on state taxpayer standing.

A22

alleged that the program saddled them with an additional

tax burden and that the revenues would be unlawfully

spent to support the “class” of Native Hawaiians. Id. The

court found the case to fit the description of a “good-faith

pocketbook action” under Doremus. Id.

[4] Similarly, appellants’ allegations satisfy the Dor-

emus pocketbook injury requirement for standing. They

have set forth their status as state and municipal tax-

payers and specifically have stated the amount of funds

appropriated and allegedly spent by the taxing govern-

mental entities as a result of the Good Friday holiday.

[5] The government contends that taxpayers as such

cannot have standing to challenge section 8-1 because the

bare declaration of Good Friday as a state holiday does

not, standing alone, involve any expenditure of tax reve-

nues. This argument cannot prevail. Legislative enact-

ments are not the only government activity which the

taxpayer may have standing to challenge. See id. (con-

trasting state taxpayer’s ability to challenge executive

conduct with federal taxpayer’s) (quoting Public Citizen,

Inc. v. Simon, 539 F.2d 211, 218 n.30 (D.C. Cir. 1976)); see

also Bowen v. Kendrick, 487 U.S. 589, 618-20 (1988) (federal

taxpayers have standing to challenge executive or admin-

istrative grants made pursuant to Congress’ taxing and

spending powers); Everson v. Board of Educ., 330 U.S. 1

(1947) (assuming without question that school district

taxpayer has standing to challenge school board reimbur-

sement of parents for public transportation fares incurred

by their children traveling to parochial schools); District

of Columbia Common Cause, 858 F.2d at 8-9 (municipal

A23

taxpayers may challenge District of Columbia’s expendi-

ture of public funds to influence the outcome of an initia-

tive); Hawley, 773 F.2d at 741-42 (municipal taxpayers may

challenge city lease of airport terminal space to church

where the lease agreement could have a detrimental

impact on the public fisc). The complaint asserts that

section 8-1 proclaims a state holiday in violation of the

federal and state constitutions, and that state and munici-

pal tax revenues fund the paid holiday for government

employees. The collective bargaining agreements entered

into by the government incorporate the challenged stat-

ute. In our view, this allegation identifies an expenditure

of public funds sufficiently related to appellants’ consti-

tutional claim.

Having recognized an injury allegedly suffered by

the taxpayer, we now consider the causation and

redressability requirement. Causation and redressability

are essentially identical requirements where the remedy

is an order to desist. See Allen v. Wright, 468 U.S. 737, 751

(1984) (discussing elements of standing); District of

Columbia Common Cause, 858 F.2d at 5 (considering munic-

ipal taxpayer standing).

The district court impliedly found that appellants

have established causation and redressability. Cammack,

673 F. Supp. at 1528 (determining that the injury would

be remedied by a favorable decision). Appellants’

asserted injury is the impermissible advancement of reli-

gion effected by the recognition of Good Friday as a state

hoiiday and the expenditure of tax revenues to publi

employees for not working on that day. “If this court

A24

strikes down Hawaii Rev. Stat. § 8-1 as constitutionally

flawed, the alleged entanglement between the State of

Hawaii and religion would be terminated.” Id. Ceasing the

government's expenditure of public monies on the holiday

could be accomplished by voiding some portions of the

collective bargaining agreements on public policy grounds,

or at the least by requiring that the agreements be revised in

the next round of contract negotiations. Id. See generally

District of Columbia Common Cause, 858 F.2d at 5 (“The injury

— misuse of public funds — is redressed by an order prohibit-

ing the expenditure.”) (citations omitted).

In summary, we conclude that appellants have stand-

ing as both state and municipal taxpayers to challenge

the expenditure of tax revenues on paid leave days for

the Good Friday holiday. Appellants have asserted the

necessary injury — actual expenditure of tax dollars - and

that a successful challenge would remedy the injury. This

notion of standing is consistent with the traditional judi-

cial hospitality extended to establishment clause chal-

lenges by taxpayers generally. See, e.g., School Dist. of

Grand Rapids v. Ball, 473 U.S. 373, 380 n.5 (1985) (listing

cases involving establishment clause challenges by state

taxpayers to programs aiding nonpublic schools);

Fletcher, The Structure of Standing, 98 Yale L.J. 221, 267-72

(1988) (describing, with some skepticism, the limited

establishment clause exception to the general rule against

federal taxpayer standing).1°

10 Our conclusion renders consideration of other possible

bases for standing — the denial of access to state facilities and

services, some plaintiffs’ status as public employees — unnecessary.

A25

The first amendment provides that “Congress shail

make no law respecting an establishment of religion. ...”

U.S. Const. amend. I. The establishment clause is made

applicable to the states by the fourteenth amendment.

Everson, 330 U.S. at 5.

[6] Recently the Supreme Court stated that it “has

come to understand the Establishment Clause to mean

that government may not promote or affiliate itself with

any religious doctrine or organization.” County of Alle-

gheny v. ACLU, 492 U.S. 573, 109 S.Ct. 3086, 3099 (1989).

The establishment clause, however, “permits government

some latitude in recognizing and accommodating the cen-

tral role religion plays in our society.” Id. at 3135 (Ken-

nedy, J., concurring and dissenting) (citing Lynch v.

Donnelly, 465 U.S. 668, 678 (1984)).

The government argues that this case is controlled by

Marsh v. Chambers, 463 U.S. 783 (1983). In Marsh, the

Court upheld the Nebraska state legislature’s practice of

opening its daily sessions with a prayer from an official

chaplain, who was compensated for his services from the

state treasury. The Court explained that legislative prayer

was “deeply embedded in the history and tradition of

this country[,] [f]rom colonial times through the founding

of the Republic and ever since.” 463 U.S. at 786.

[7] Hawaii's recognition of Good Friday stems back

to its days as a territory; the holiday has been celebrated

A26

for longer than Hawaii has even been a state. Nonethe-

less, it cannot be said that the Good Friday holiday is as

deeply embedded in the fabric of the state as was legisla-

tive prayer in Marsh. We are reluctant to extend a ruling

explicitly based upon the “unique history” surrounding

legislative prayer, id. at 791, to such a different factual

setting. As the Court noted recently, the impact of the

activities challenged in Marsh were largely confined to

the internal workings of a state legislature. See County of

Allegheny, 109 S.Ct. at 3106 n.52. In contrast, a public

holiday can affect the entire populace. We reject the gov-

ernment’s contention that Marsh controls the disposition

of this case.

Although the Supreme Court has rejected any abso-

lute approach in applying the establishment clause, it has

generally relied upon the test first enunciated in Lemon v.

Kurtzman, 403 U.S. 602 (1971). Mueller v. Allen, 463 U.S.

388, 394 (1983); accord Board of Educ. v. Mergens, 110 S. Ct.

2356, 2370 (1990) (plurality opinion)."!

[8] In Lemon, the Court stated:

Every analysis in this area must begin with con-

sideration of the cumulative criteria developed

'! Although the Lynch Court insisted that it was not con-

fined to the Lemon test in analyzing establishment clause cases,

see 465 U.S. at 679, in fact in only one such case over the past

twenty years had the Court failed to apply it: Marsh v. Cham-

bers. See also Larson v. Valente, 456 U.S. 228, 252-55 (1982)

(applying one prong of Lemon test after stating that its applica-

tion “is not necessary to the disposition of the case before us”).

ee ee

A27

by the Court over many years. Three such tests

may be gleaned from our cases. First, the statute

must have a secular legislative purpose; second,

its principal or primary effect must be one that

neither advances nor inhibits religion; finally,

the statute must not foster “an excessive govern-

ment entanglement with religion.”

Lemon, 403 U.S. at 612-13 (quotation and citation omitted).

The challenged statute must satisfy all three prongs of the

Lemon test to comport with the establishment clause.

Edwards v. Aguillard, 482 U.S. 578, 583 (1987).

The first prong of the Lemon test requires that the

statute at issue have “a secular legislative purpose.”

Lemon, 403 U.S. at 612. Generally, in applying this prong,

the Supreme Court has considered whether the purpose

of the legislation was to endorse religion. County of Alle-

gheny, 109 S. Ct. at 3100. Government endorsement of

religion has been found when the government conveys or

attempts to convey a message that a particular religious

belief is favored or preferred, or when it promotes ” ‘one

religion or religious theory against another or even

against the militant opposite.’ ” Id. at 3101 (quoting

Epperson v. Arkansas, 393 U.S. 97, 104 (1968) (striking

down statute prohibiting teaching evolution)). In County

of Allegheny, the Court reiterated that it “squarely rejects

any notion that this Court will tolerate some government

endorsement of religion.” Id. at 3102 (citing Lynch, 465

U.S. at 690 (O’Connor, J., concurring)).

A28

[9] The purpose prong is clearly violated when there

is no legitimate secular purpose for the legislation. See,

e.g., Edwards, 482 U.S. at 585-89 (striking down a statute

forbidding the teaching of evolution in public schools

without accompanying instruction in “creation science”);

Wallace v. Jaffree, 472 U.S. 38, 56-60 (1985) (striking down a

statute mandating a period of silence in public schools for

meditation or voluntary prayer). If the Court can describe

the “actual purpose” of the act as religious, due to an

absence of sincerely held, legitimate secular purpose,

then the legislation must fall. See id. at 56 (quoting Lynch,

465 US. at 690 (O’Connor, J., concurring)) (stating “actual

purpose” test).

When there are both religious and legitimate, sincere

secular purposes motivating legislation, it appears that

the existence of the secular purpose will satisfy the first

Lemon prong. See id. (“[N]Jo consideration of the second or

third criteria is necessary if a statute does not have a

clearly secular purpose. For even though a statute that is

motivated in part by a religious purpose may satisfy the

first criterion, . . . the First Amendment requires that a

statute must be invalidated if it is entirely motivated by a

purpose to advance religion.”) (citations omitted,

emphasis added). In Lynch v. Donnelly, the Court noted

that the city of Pawtucket had “a” secular purpose for its

creche display, and therefore the purpose prong was sat-

isfied. See 465 U.S. at 681. The Court rejected the argu-

ment that the government’s purpose must be entirely

secular. See id. n.6. (“Were the test that if the government

must have ‘exclusively secular’ objectives, much of the

A29

conduct and legislation this Court has approved in the

past would have been invalidated.”).

[10] The Supreme Court most recently examined the

secular purpose prong of the Lemon test in Bowen v.

Kendrick, 487 U.S. 589 (1988). In that case, the Court

upheld the Adolescent Family Life Act, which permitted

federal grant money to be awarded to organizations,

including religious organizations, providing care to preg-

nant adolescents or adolescent parents. The Court stated

that a statute will fail the purpose prong “only if it is

motivated wholly by an impermissible purpose.” Id. at

602. The Court observed that the challenged statute

appeared to be “motivated primarily, if not entirely, by a

legitimate secular purpose.” See id. Thus, it was indispu-

table that “religious concerns were not the sole motivation

behind the Act” and it could not be said that the Act

“lacks a legitimate secular purpose.” See id. at 602-03

(emphasis added). Looking beyond the face of the statute,

the Court concluded that “the parts of the statute to

which appellees object were also motivated by other,

entirely legitimate secular concerns.” See id. at 603

(emphasis added). Because there were legitimate secular

purposes, it could not be said that Congress’ “ ‘actual

purpose’ .. . was one of ‘endorsing religion.’ ” See id.

(quoting Edwards).'?

12 The dissent criticizes our reliance upon Kendrick in dis-

cerning the correct formulation of this prong of the Lemon test.

Kendrick is both the most recent Supreme Court establishment

clause case examining the purpose prong, and the only case

since Lynch which addressed competing secular and sectarian

(Continued on following page)

eee

A30

[11] In reviewing a challenged statute for a secular

purpose, we must be “reluctant to attribute unconstitu-

tional motives to the states, particularly when a plausible

secular purpose for the State’s program may be discerned

from the face of the statute.” Mueller, 463 U.S. at 394-395;

see also Note, The Transfiguration of the Lemon Test: Church

and State Reign Supreme in Bowen v. Kendrick, 32 Ariz. L.

Rev. 365, 369-71 (1990) (describing Supreme Court’s reluc-

tance to deem legislation violative of the first prong of

the Lemon test in the face of a plausible legislative pur-

pose); id. at 385 (“Any avowed legislative purpose will be

valid, even if it coincides with a purely sectarian [enter-

prise].”). The statement of such purpose, however, must

be sincere and not a sham. Edwards, 482 U.S. at 586-87; see

also Kendrick, 487 U.S. at 604 (quoting Edwards) (stating

that Congress’ expressed purposes were sincere). In

determining the legislative purpose, courts may consider

“the statute on its face, its legislative history, or its inter

pretation by a responsible administrative agency.”

Edwards, 482 U.S. at 594. Courts may also consider the

(Continued from previous page)

p pag

purposes. Nowhere in Kendrick is there even a hint that the

Court was searching for a primary purpose.

When, in contrast to the situation which we face here, only

one legislative purpose animates a governmental act, then it is

sound to evaluate such “actual” purpose. In the cases cited by

the dissent to justify an “actual” purpose analysis, the Court

was faced with no legitimate secular purpose whatsoever, and

understandably focused upon the legislature’s one “actual”

purpose. See Edwards, 482 U.S. at 585-89; Wallace, 472 U.S. at

56-60; Stone v. Graham, 449 U.S. 39, 41 (1980) (per curiam).

ne NaN he

A31

historical context of the statute and the specific sequence

of events leading to the passage of the statute. Id. at 595.'3

Given this guidance for the appropriate application

of the purpose prong of the Lemon test, we turn to the

facts of this case. The legislative history of section 8-1 and

its predecessors informs us as to its purpose

[12] An examination of the legislative history sur-

rounding the 1941 bill, which ultimately became law, and

the earlier bills, which failed to establish a Good Friday

holiday, demonstrates that the primary concern

motivating selection of the holiday was simply timing.

For example, the 1941 bill provided for the creation of

two new holidays, Lincoln’s Birthday and Good Friday. It

is clear from the Senate Standing Committee report

'’ The dissent’s fear that our formulation of the purpose

test “effectively gut[s] this prong,” see Dissent at 10885, is

misplaced. The dissent worries that a creche or star of David

could be installed on government buildings for the legitimate

secular purpose of aesthetics, and thus presumably would

survive the first Lemon prong. This is no objection to the

Kendrick formulation of the purpose prong. For one thing, even

under the dissent’s version of the test, if aesthetics were the

“primary” purpose behind the legislature’s actions, the display

would pass the dissent’s test as well. More to the point, the

display would almost certainly fall on the second, “eftects’

prong of the Lemon test, described below. See County of Alle

gheny, 109 S. Ct. at 3103-05, 3112-15 (determining consttu-

tionality of creche and menorah displays on “effects” prong). 4

three-pronged test need not be recrafted simply because one

may hypothesize an unconstitutional act which survives one of

the prongs.

A32

accompanying the bill that the committee was most inter-

ested in the timing of the proposed new holidays:

This bill designs to add Lincoln’s Birthday and

Good Friday to the list of territorial holidays.

Your committee feels that Good Friday should

be set aside as a legal holiday but feels that,

inasmuch as Washington’s Birthday is a legal

holiday and falls within the short month of Feb-

ruary, to have another holiday within that

month would be inadvisable.

Haw. Sen. Stand. Comm. Rep. No. 296 (H. Bill No. 154),

reprinted in 1941 Haw. Sen. J. 710. Nothing in the legisla-

tive history concerning the 1941 bill suggests a religious

motivation for its ultimate passage. Indeed, the legisla-

ture’s approval of both proposed holidays and the gover-

nor’s expressed opposition, because “the holidays were

getting a bit thick about that time of year,” betray no

particular interest in the secular or sectarian origins of

either day.

The legislature’s consideration of earlier attempts to

have Good Friday declared a public holiday are similarly

devoid of sectarian influences.'4 A 1929 bill proposing

establishment of Good Friday as a legal holiday was

tabled because the state senate’s Committee on Judiciary

determined “that there are already enough legal holi-

days.” Haw. Sen. Stand. Comm. Rep. No. 225 (Sen. Bill

No. 136), reprinted in 1929 Haw. Sen. J. 727. A second bill

'4 Although the earlier bills did not become law, their

legislative history is relevant as the history of the 1941 bill

which enacted Good Friday as a legal holiday. See Edwards, 482

U.S. at 594.

A33

was tabled in 1931 because “[y]our Committee sees no

good reason for adding to the number of Territorial holi-

days now prescribed by law.” Haw. Sen. Stand. Comm.

Rep. No. 239 (H. Bill No. 297), reprinted in 1931 Haw. Sen.

J. 803.

In 1939, the Hawaii Territorial Legislature passed a

bill designating Good Friday as a public holiday. The bill

was vetoed by the governor, again due to concerns about

the number of holidays already recognized in Hawaii. See

Governor’s Veto Message, H. Bill No. 39, May 3, 1939 (“I

have had many objections from business men throughout

the Territory to creating additional holidays and | see no

reason for adding to those which we now have.”).

Accompanying that bill was the following committee

report:

There are now ten legal holidays in the Ter-

ritory, including Thanksgiving, plus primary

and general election days. Public sentiment is

divided on the advisability of creating Good

Friday a legal holiday. Some feel that we already

have too many holidays to the detriment of both

private and public business. On the other hand,

others feel equally strongly that Good Friday

being in theory at least a day of solemn religious

observance by the members of the various

churches and religious denominations should be

given legal sanction. More and more churches

are now conducting the three-hour service on

that day and many business houses are allowing

their employees to take time off for this pur-

pose. If the legislature should feel that we

should have more legal holidays than we now

have, it would seem that in view of the religious

significance of Good Friday observance of this

A34

day would have as much justification as Thanks-

giving or Christmas.

Haw. H. Stand. Comm. Rep. No. 254 (H. Bill No. 39),

reprinted in 1939 Haw. H.J. 890.

[13] The district court concluded that a fair reading of

the 1939 committee report demonstrates that the primary

purpose of the bill was to have more legal holidays. We

happen to agree, recognizing, of course, that this clearly

secular purpose need not even be “primary” to satisfy the

purpose prong. Although the passage recognizes that

some people consider Good Friday to be a

solemn religious observance,’ ” the legislative purpose

for the bill was that Hawaii “ ‘should have more legal

holidays.’ ” Cammack, 673 F.Supp. at 1534 (quoting com-

mittee report). Read in the context of the earlier, tabled

bills, the governor’s veto of the 1939 bill, and the 1941

enactment, it seems clear that the statute had at least a

legitimate, sincere secular purpose.

44a

[14] Furthermore, even to the extent that an improper

purpose could be gleaned from the statute’s legislative

history, that would not compel a finding of improper

purpose now, some fifty years later. See McGowan v. Mary-

land, 366 U.S. 420, 445 (1961) (noting that the present

purpose of Sunday closing laws is to provide a uniform

day of rest of all, regardless of the religious origins of the

laws). The most ardent proponents of the statute in this

litigation are the labor unions who have incorporated the

statutory holidays into their collective bargaining agree-

ments with the state and local governments. This is a

strong indicant that the purpose animating the chal-

lenged act is not so much state sponsorship of religion as

A35

state sensitivity to the concerns of organized labor. See id.

at 435 (noting involvement of labor groups in passage of

Sunday closing laws); Two Guys from Harrison-Allentown,

Inc. v. McGinley, 366 U.S. 582, 595 (1961) (the challenged

Sunday blue law “was promoted principally by the repre-

sentatives-of labor and business interests”); Franks v. City

of Niles, 29 Fair Empl. Prac. Cas. (BNA) 1114, 1117 n.5

(N.D. Ohio 1982) (rejecting establishment clause chal-

lenge to municipal Good Friday holiday, in part because

of union involvement in selection of recognized holi-

days).

[15] It is of no constitutional moment that Hawaii

selected a day of traditional Christian worship, rather

than a neutral date, for its spring holiday once it identi-

fied the need. The Supreme Court has recently identified

as an “unavoidable consequence of democratic govern-

ment” the majority’s political accommodation of its own

religious practices and corresponding “relative disadvan-

tage [to] those religious practices that are not widely

engaged in.” See Employment Div. v. Smith, 110 S. Ct. 1595,

1606 (1990). “[T]he government may (and sometimes

must) accommodate religious practices and ... may do so

without violating the Establishment Clause.” Hobbie v.

Unemployment Appeals Comm'n, 480 U.S. 136, 144-45

(1987).'° When applying the first prong of the Lemon test,

1S This and the cases which are discussed below make

clear that “accomodation” is not a principle limited to “bur-

dens on the free exercise of religion,” despite Justice

(Continued on following page)

A36

the secular purpose need not be unrelated to religion;

“{rjather, Lemon’s ‘purpose’ requirement aims at prevent-

ing the relevant governmental decisionmaker . . . from

abandoning neutrality and acting with the intent of pro-

moting a particular point of view in religious matters.”

Corporation of the Presiding Bishop of the Church of Jesus

Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 335

(1987).

In Zorach v. Clauson, 343 U.S. 306 (1952), the Court

rejected an establishment clause challenge to a program

whereby public schools released students for a limited

time for off-campus religious instruction. On behalf of the

Court, Justice Douglas explained that a legislative act

motivated by a legitimate secular purpose is not uncon-

stitutional simply because it accommodates the religious

practices of some citizens:

When the state . . . cooperates with religious

authorities by adjusting the schedule of public

events to sectarian needs, if follows the best of

our traditions. For it then respects the religious

nature of our people and accommodates the

public service to their spiritual needs. ... The

government must be neutral when it comes to

competition between sects. It may not trust any

sect on any person. It may not coerce anyone to

attend church, to observe a religious holiday, or

to take religious instruction. But it can close its

(Continued from previous page)

Blackmun’s remark suggesting the contrary in County of Alle-

gheny. See 109 S. Ct. at 3105 n.51. The County of Allegheny

footnote does not purport to describe the outer limits of per-

missible accommodation.

A37

doors or suspend its operations as to those who

want to repair to their religious sanctuary for

worship or instruction.

Id. at 313-14. The Court explicitly rejected the view that

“separation of Church and State means that public insti-

tutions can make no adjustments of their schedules to

accommodate the religious needs of the people.” /d. at

315. The Court described such a view as “a philosophy of

hostility to religion” which it could not read into the Bill

of Rights. See id., see also Gallagher v. Crown Kosher Super

Market of Massachusetts, Inc., 366 U.S. 617, 627 (1961)

(plurality) (“But because the State wishes to protect those

who do worship on Sunday does not mean that the State

means to impose religious worship on all.”) (citing Ever-

son, 330 U.S. at 16); cf. Lynch, 465 U.S. at 710 (Brennan, J.,

dissenting) (“When government decides to recognize

Christmas Day as a public holiday, it does no more than

accommodate the calendar of public activities to the plain

fact that many Americans will expect on that day to

spend time visiting with their families, attending reli-

gious services, and perhaps enjoying some respite from

preholiday activities.”) (citing Zorach).

Hawaii's compliance with the spirit of Zorach favora-

bly compares with California’s improper recognition of

Good Friday in Mandel v. Hodges, 54 Cal. App. 3d 596, 127

Cal. Rptr. 244 (1976). In Mandel, the Governor of Califor-

nia ordered the closing of state offices on Good Friday

between the hours of noon and 3:00 p.m. state employees

were paid for the three hours of closure. The California

Court of Appeal reasoned that the order “cannot plausi-

bly be characterized as serving any ‘secular purpose.’ ”

Mandel, 54 Cal. App. 3d at 612, 127 Cal. Rptr. at 254.

areal

A38

Unlike the instant case, the time off in California coin-

cided purposefully with the traditional time for worship.

Moreover, the personnel manual explaining the reason

for the Governor’s order stated: ” ‘[iJnasmuch as state

offices are closed from 12:00 to 3:00 p.m. on Good Friday,

employees are given these hours off for worship.’ ” Id.

(emphasis in Mandels). In this case, however, the

employees have the entire day off, not just the three

hours associated with the Christian worship period.

Appellants concede that Hawaiian public employees are

not encouraged in any way to use the holiday for wor-

ship.

[16] We conclude that the Hawaii statute has a legiti-

mate, sincere secular purpose, specifically to provide

Hawaiians with another holiday, and thus is not moti-

vated “wholly by an impermissible purpose.” Kendrick,

487 U.S. at 602. There is nothing impermissible about

considering for holiday status days on which many peo-

ple choose to be absent from work for religious reasons.

That the state legislature was able to accomplish its secu-

lar purpose and at the same time accommodate the wide-

spread religious practices of its citizenry is hardly a

reason to invalidate the statute. The statute satisfies the

purpose prong of the Lemon test.

[17] We next consider whether the Good Friday holi-

day violates the second prong of the Lemon test, which

requires examining whether the primary effect of section

8-1 is the advancement of religion. Lemon, 403 U.S. at 612.

“{A]n important concern of the effects test is whether the

symbolic union of church and state effected by the chal-

lenged governmental action is sufficiently likely to be

perceived by adherents of the controlling denominations

A39

as an endorsement, and by the nonadherents as a disap-

proval of their religious choices.” School Dist. of Grand

Rapids, 473 U.S. at 390; accord Mergens, 110 S. Ct. at

2371-72 (plurality).

In McGowan v. Maryland, the Supreme Court exam-

ined whether the Sunday Closing Laws violated the

establishment clause because Sunday is predominantly

the Sabbath day for Christians. See 366 U.S. at 431. Chief

Justice Warren’s cpinion for the Court extensively traced

the overtly sectarian origins of such laws. See id. at

431-35. As indicated earlier, the Court noted that the

proponents of such laws had grown to include secular

(particularly labor) organizations. See id. at 435. The

Court concluded that such laws now had an overriding

purpose and effect of establishing a uniform day of rest

for the community, rather than of promoting the Chris-

tian religion. See id. at 444-45. The Court stated that “[t]he

present purpose and effect of most of [the laws] is to

provide a uniform day of rest for all citizens; the fact that

this day is Sunday, a day of particular significance for the

dominant Christian sects, does not bar the State from

achieving its secular goals.” Id. at 445.

[18] The Sunday Closing Laws provide an apt anal-

ogy to Hawaii’s ongoing sanction of Good Friday as a

legal holiday. Sunday was an appropriate choice for a

weekly uniform day of rest because the community to a

large degree already so regarded Sunday, due to its reli-

gious significance and (no doubt) to the long tradition of

Sunday Closing Laws:

Sunday is a day apart from all others. The cause

is irrelevant; the fact exists. It would seem unre-

alistic for enforcement purposes and perhaps

A40

detrimental to the general welfare to require a

State to choose a common day of rest other than

that which most persons would select cf their

own accord.

Id., at 452 (internal footnote omitted). Similarly, given

that the evidence in this case informs us that large

numbers of Hawaiians observe Good Friday, the legisla-

ture cannot be faulted for not selecting a different spring

day for a “common day of rest.” Many Christians pre-

sumably will take at least part of the day off anyway, in

order attend religious services, and non-Christians have

enjoyed the holiday for fifty-years — the entire working

life of the vast majority of the public workforce. No

enforcement of religion is implicated merely because the

legislature is cognizant of these truths. That the special

status of Good Friday derives from its religious origin is

no more relevant than Sunday’s status as the sabbath for

the dominant Christian sects; “[t]he cause is irrelevant.”

[19] The traditional celebrations of Sundays which so

moved the McGowan Court, such as family outings and

trips to the country, see id. at 451-52, are simply the

expected benefits of a uniform day of rest. Exactly the

same sorts of activities occur on any widely observed

public holidays (with the probable exception of

Christmas, which is imbued with different rituals) and

even on Saturdays. The record evidence on the impact of

the Good Friday holiday in Hawaii suggests nothing

inconsistent with the observations made in McGowan. For

example, the Good Friday holiday has become a popular

shopping day in Hawaii and businesses have benefited

from the three-day weekend created as a result of the

A4]l

holiday. Cammack, 673 F. Supp. at 1535-36.'© Similarly,

citizens are better able to enjoy the many recreational

opportunities available in Hawaii. Id. at 1536. Such evi

dence indicates that Hawaii's Good Friday holiday, at

least at this late date, fifty years after enactment, cannot

be regarded as an endorsement of religion any more than

Sunday closing laws may. —

In fact, Hawaii's adoption of Good Friday as a legal

holiday could be viewed as less “coercive” or “endors

ing” of religion than the Sunday blue laws. Under

Hawaii's scheme, recognition of the holiday is simply

accomplished by closing the office doors; the freed

employees may enjoy virtually any leisure activity imag

inable. In contrast, the Sunday Closing Laws were origi

nally designed to funnel people into church. See, ey,

McGowan, 366 U.S. at 432 (quoting the English law appli

cable to the colonies at the time of the American Revolu

tion). Thus, most leisure activities were restricted. Even at

the time the laws were examined in 1961, there were

-~many limitations on the types of establishments which

could be open. See, e.g., id. at 423 (Maryland law required

closure of dancing halis, opera houses, and bowling

alleys); Two Guys from Harrison-Allentown, Irc., 366 US at

585 (Pennsylvania’s blue lw “generally forbids all

worldly employment, business and sports on Sunday”),

'6 The potential effect on business of a Good Friday holi

day was very much on the legislature's mind in considering

establishment of the holiday. See Haw. H. Stand. Comm. Rep

No. 254 (H. Bill No. 39),reprinted in 1939 Haw. H.J. 890 (noting

that some believed that too many holidays had a detrimental

impact on business, but that many businesses were releasing

employees to attend Good Friday services anyway)

A42

Gallagher, 366 U.S. at 620 (Massachusetts law made “gen

erally unlawful Sunday attendance or participation. in

any public entertainments except for those which are

duly licensed locally, conducted after 1 p.m., and are in

keeping with the character of the day and not inconsis

tent with its due observance”). Such Court-approved

strictures would seem to broadcast the government's

endorsement of the religious purpose of the sabbath, as

expressed in the Fourth Commandment, in a far more

obvious manner than Hawaii's simple release of its work

force to do whatever tickles the fancy.

[20] The breadth of impact of section &-1, on its face

and by its incorporation into the collective bargaining

agreements, contributes to the conclusion that the stat

ute’s effect is simply the creation of a paid leave day for

many state employees and not the endorsement of reli

gion. Christian employees are not singled out for the paid

holiday.'” Good Friday is a paid leave day for all

employees covered by the collective bargaining agree.

ments, regardless of individual beliefs. Compare Committee

for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756

(1973) (striking down program mostly benefitting parents

‘In Zorach, the Court upheld a progran, inder which

public school students who wished to partake in religious

instruction were released from class, for a limited time, to do

so, although students who did not receive such instruction

were required to remain at their public school. See 343 U.S. at

3U8-U9. No classroom studies were conducted for the remain-

ing students during the release time period. Jd. at 309. Thus, it

Joes not appear necessary to the constitutionality of a program

ander the establishment clause that the program impact adher-

ents and nonadherents equally.

A43

of parochial school children) with Board of Educ v. Allen,

392 US. 236 (1968) (permitting textbook loans to paro-

chial school children under a program which benefits all).

The paid leave is for the entire day and not only for the

three hours associated with the traditional Christian

observance of Good Friday. Compare Cammack, 673 F.

Supp. at 1537 (no evidence in the record that pubic

employers encourage church attendance or any other

form of religious activity on Good Friday holiday) with

Mandel, 54 Cal. App. 3d at 612, 127 Cal. Rptr. at 254

(emphasizing limited closing period and explicit encour-

agement to worship in declaring an executive order

closing state offices for a portion of Good Friday uncon-

stitutional).

Another factor in measuring the effect of a govern

mental action which might be construed as endorsement

of religion is context. See County of Allegheny, 109 S.Ct. at

3103-04. In Lynch and County of Allegheny, the issue was

how far the government could go toward participating in

or endorsing the religious celebration of Christmas. In

each case, the Court approved the actua! display of reli

gious icons (a creche and menorah, respectively) which

were suitably balanced by secular displays

[21] Good Friday’s mere placement on the roll of

public holidays, along with other important days of secu

lar and (in some cases) religious significance, diminishes

the likelihood of an “endorsing” ettect Cf. Lynch 465 LS

at 710 n.16 (Brennan, J., dissenting) (“It is worth noting

that Christmas shares the list of tederal holidays wit!

such patently secular, patriotic holidays as the Fourth ot

July, Memorial Day, Washington's Birthday, Labor Days

and Veterans Day. We may reasonably inter trom. the

A44

distinctly secular character of the company that

Christmas keeps on this list that it too is included for

essentially secular reasons.”) (citation to federal statute

omitted). Good Friday is surrounded by patriotic and

historic dates which are all selected for their importance

to the citizens of Hawaii. The government's action might

best be termed a mere “acknowledgment” of religion. See

id. at 692-93 (O’Connor, J., concurring) (voting to uphold

creche display against establishment clause challenge).

Viewed in this context, it is unlikely that an observer

would regard Good Friday’s inclusion as an endorsement

of religion. Closing state offices on that day simply

acknowledges Good Friday’s status as a holiday observed

widely enough (and long enough) that the secular pur-

pose of establishing a uniform day of rest is appropriately

achieved by selecting it.

[22] If Hawaii went further toward celebrating the

religious elements of Good Friday, such as erecting dis-

plays concerning the crucifixion of Jesus, then the

absence of secular aspects to counterbalance the religious

would probably render the display (not necessarily the

holiday) unconstitutional under County of Allegheny.

Christmas displays are prone to establishment clause

challenges because they move far beyond a simple gov-

ernmental accommodation of Christians’ desire to have a

day to celebrate, and, without a sufficient secular context

in which to place the display, cross the line into endorse-

ment of the celebrating religion. Nothing in the display

cases, however, provides support to the notion that the

mere calendar recognition of such a holiday would have

the effect of endorsing the religion. See, e.g., Lynch, 465

A45

U.S. at 675-76 (describing nation’s long history of recog-

nizing Christmas and Thanksgiving holidays); id. at 710

(Brennan, J., dissenting) (recognition of Christmas as a

public holiday merely accommodates the calendar of

public activities to the citizenry’s traditional Christmas

observances). In fact, Hawaii’s acknowledgment of the

holiday lacks any reference whatsoever to religion, unlike

the President’s Thanksgiving Day proclamations. See id.

at 675-76. The context of the Good Friday holiday, a

minimal accommodation of the religious practices of

some Hawaiians, decreases the likelihood of a public

perception of endorsement.

Because the primary effect of the Good Friday holi

day is secular, we cannot conclude that the holiday is

unconstitutional merely because the holiday may make it

easier to worship on that day for those employees who

may wish to do so. “[T]he ‘Establishment’ Clause does

not ban federal or state regulation of conduct whose

reason or effect merely happens to coincide or harmonize

with the tenets of some or all religions.” McGowan, 366

U.S. at 442. Moreover ” ‘not every law that confers an

7 4é

“indirect, remote,” or “incidental” benefit upon [rel

gion] is, for that reason along, constitutionally invalid.’ ”

Lynch, 465 U.S. at 683 (quoting Nyquist, 413 US. at 771)

We conclude that section 8-1 satisfies the effect prong of

the Lemon test.

[23] The third prong of the Lemon test requires exam

ining whether the Hawaii statute leads to “an excessive

government entanglement with religion.” Lemon, 403 US

A46

at 613 (quotation omitted). The entanglement prong seeks

to minimize the interference of religious authorities with

secular affairs and secular authorities in religious affairs.

See L. Tribe, American Constitutional Law § 14-11, at 1226

(2d ed. 1988).

Appellants argue that the entanglement prong is not

satisfied because the determination of the holiday

depends upon the church’s calculation of when Easter

occurs each year. The required contact between state and

religious bodies, in her view, amounts to excessive

administrative entanglement.

Cases in which the Supreme Court has found exces-

sive administrative entanglement often involve state aid

to organizations or groups affiliated with religious sects,

such as parochial schools. See, e.g., Aguilar v. Felton, 473

U.S. 402 (1985); Roemer v. Board of Public Works, 426 U.S.

736 (1976); Levitt v. Committee for Public Educ. & Religious

Liberty, 413 U.S. 472 (1973); Lemon, 403 U.S. 602 (1971).

Administrative entanglement is also likely where reli-

gious and public employees must work closely together.

See Aguilar, 473 U.S. at 412-14 (program required on-site

monitoring of sectarian schools by public authorities and

coordinated planning by public and sectarian figures);

Walz v. Tax Comm'n, 397 U.S. 664, 674-75 (1970) (“the

questions are whether the involvement is excessive, and

whether it is a continuing one calling for official and

continuing surveillance”). None of these situations bear

on Hawaii's presumed simple reference to an ecclesiasti-

cal calendar (or, more likely, the World Almanac) to deter-

mine the date of a public holiday.

A47

[24] In Lynch, the Court examined whether there was

administrative entanglement between the city and the

church resulting from the city’s creche display. Finding

that there were no direct city expenditures for the mainte-

nance of the creche and no evidence of contact between

the city and the church regarding the creche, the Court

concluded that “[t]here is nothing here . . . like the

‘comprehensive, discriminating, and continuing state sur-

veillance’ or the ‘enduring entanglement’ present in

Lemon.” Lynch, 465 U.S. at 684 (quoting Lemon 403 US. at

619-22). In the case of Hawaii’s Good Friday holiday, to

the extent that the actual date of the holiday would be

determined by resort to church calendars, any such

entanglement would surely not be the kind of “compre

hensive” and “enduring” entanglement the first amend

ment prohibits.!*

Appellants also contend that section 8-1 fails because

its passage has resulted in political divisiveness. This

divisiveness is purportedly evidenced by the attempts of

nonChristian religious groups, including Buddhists and

18 Nor are we persuaded by the reasoning of the Connecti-

cut Supreme Court in Griswold Inn, Inc. v. Connecticut, 183

Conn. 552, 441 A.2d 16 (1981). Although the court found that

excessive entanglement existed because Good Friday's actual

date is determined by ecclesiastical calendars, the court also

was faced with a significant additional wrinkle. In the ¢chal-

lenged statute, Connecticut had banned the sale of liquor on

Good Friday only. Thus, the state was forced to monitor alco-

hol sales on Good Friday and, in effect, “enforce observance of

a religious holiday” by liquor licenses. 441 A.2d at 22. There is -

no such entanglement tn Hawani’s simple closure of state

offices.

A48

Baha’is, to have significant days in their religious calen-

dars declared legal holidays by the state legislature.

[25] Although political divisiveness has been consid-

ered in establishment clause cases, see, e.g., Nyquist, 413

U.S. at 796, it has never been relied on “as an indepen-

dent ground for holding a government practice uncon-

stitutional.” Lynch, 465 U.S. at 689 (O’Connor, J.,

concurring); see also Corporation of the Presiding Bishop of

the Church of Jesus Christ of Latter-Day Saints, 483 U.S. at

339 n.17 (quoting and following Lynch). In any event, we

are unpersuaded that political divisiveness occurred as a

result of the Good Friday holiday. There is no showing

that the nonChristian sects’ attempts to have certain days

declared state holidays were prompted by enactment of

the Good Friday holiday. Indeed, these “controversies”

appear to have occurred some two or three decades after

Good Friday’s declaration as a legal holiday. We cannot

conclude that the enactment of section 8-1 has resulted in

political divisiveness. The Hawaii statute satisfies the

entanglement prong of the Lemon test.

[26] It is difficult to imagine that the average Hawai-

ian citizen would view Hawaii’s inclusion of Good Friday

on a list of state holidays as any more a law establishing a

religion than is the current inclusion of Christmas on the

same list. Cf. County of Allegheny, 198 S. Ct. at 3121

(O’Connor, J., concurring) (“The question . . . , in short, is

whether a reasonable observer would view such long-

standing practices [including recognition of Thanksgiving

as a public holiday] as a disapproval of their particular

A49

religious choices, in light of the fact that they serve a

secular purpose rather than a sectarian one and have

largely lost their religious significance over time.”) (citing

L. Tribe, American Constitutional Law 1294-96 (2d ed.

1988)); id. at 3138 (Kennedy, J., concurring and dissenting)

(“The Religion Clauses do not require government to

acknowledge these holidays or their religious component;

but our strong tradition of government accommodation

and acknowledgment permits government to do so.”).!%

19 We do not accept the contention that the observation of

“Good Friday” in the Western Christian world has become

“secularized” in the same manner as Thanksgiving and

Christmas celebrations have become in this country. Rather, we

do not regard the distinction as constitutionally significant.

What the Lemon test requires is that we inquire into the pur-

pose and effect of Hawaii’s recognition of this holiday.

Hawaii's recognition of Good Friday as a public holiday, we

conclude, is sufficiently focused toward its secular purpose

and, after 50 years, has resulted in secular effects such that an

objective observer, “acquainted with the text, legislative his-

tory, and implementation of the statute.” Wallace, 472 U.S. at 76

(O’Connor, J., concurring), would not consider the day’s recog-

nition an endorsement of religion. See Comment, Endorsing the

Supreme Court’s Decision to Endorse Endorsement, 24 Colum. J.L.

& Soc. Probs. 1, 17-18 (1990) (noting that the passage of time

dulls any message of endorsement because of the significance

of a change in status quo; “when a reasonable observer judges

a government action, the tradition or novelty of the act is

central to his or her analysis”); see also Walz, 397 U.S. 677-78

(stressing significance of long history of tax exemptions for

religious organizations in weighing their constitutionality).

The dissent’s preoccupation with the differences between

Christmas and Thanksgiving on the one hand, and Good Fri-

day on the other, inevitably succumbs to tautology.

A50

The Hawaii law does not require or endorse any religious

activity, and the only public expenditure associated with

the holiday is the continued pay accrued by public

employees. We are persuaded that nothing more is

“established” by the Hawaii statute than an extra day of

rest for a weary public labor-force.

AFFIRMED

D.W. NELSON, Circuit Judge, Dissenting:

The holly and the ivy, jingling bells, red-nosed rein-

deer, and frosty snowmen this is not. What this case is

about is Hawaii’s endorsement, by means of a state holi-

day, of a day thoroughly infused with religious signifi-

cance alone. Because I believe that such a state

establishment of religion violates both the purpose and

effects prongs of Lemon v. Kurtzman, 403 U.S. 602 (1971), I

respectfully dissent.

I. PURPOSE

The first prong of the Lemon test requires that “the

statute... have a secular legislative purpose.” Id. at 612.

Though this seems rather straightforward, the Supreme

Court has subsequently been less clear about how much

secular purpose is required to satisfy the test. The critical

question is whether a or any legitimate secular purpose is

sufficient or whether the actual or primary purpose of the

legislation must be secular. The majority believes that “a

legitimate, sincere secular purpose” is sufficient. Majority

op. at 10873. For support, it musters the language in Lynch

A51

v. Donnelly, 465 U.S. 668 (1984), that “a secular purpose”

is all that is required, id. at 681 n.6 (emphasis added), and

in Bowen v. Kendrick, 487 U.S. 589 (1988), that only a

statute “motivated wholly by an impermissible [i-.e., reli-

gious] purpose” will fail the purpose prong. Id. at 602.

The majority’s great reliance on these two <ases,

however, is troublesome in its selectivity, for the Court

has also said quite a few times that more than a or any

secular purpose is required. The most critical instance is

Justice O’Connor’s concurrence in Lynch, where she

noted that the purpose prong “is not satisfied ... by the

mere existence of some secular purpose, however, domi-

nated by religious purposes.” Lynch at 690-91 (O’Connor,

J., concurring).! Soon thereafter, a majority of the Court,

in Wallace v. Jaffree, 472 U.S. 38 (1985), adopted Justice

O’Connor’s Lynch language in looking to “ ‘whether gov-

ernment’s actual purpose is to endorse or disapprove of

religion.’ ” Id. at 56 (quoting Lynch at 690 (O’Connor, J.,

concurring)) (emphasis added. Edwards v. Aguilar, 482

U.S. 578 (1987), later quoted the exact same language

concerning.“actual purpose.” Id. at 585. That opinion also

mentioned the “legislature’s preeminent [not “wholly” |

religious purpose,” id. at 590 (emphasis added), its “pre-

dominate religious purpose,” id., the “preeminent pur-

pose ... to advance the religious viewpeint,” id. at 591,

and “the Act’s primary purpose.” Id. at 592. Previously,

' It is noteworthy that Justice O’Connor provided the fifth

vote for the Lynch majority. Therefore, since her concurrence

explicitly rejects the notion that any secular purpose will do,

the majority’s cite of Lynch on this point is not a cite to a

majority holding. The majority, then, is left only with Kendrick

for support.

A52

Stone v. Graham, 449 U.S. 39 (1980), held that posting the

Ten Commandments in schools violated the purpose

prong despite an avowed secular purpose. See Lynch at

691 (O’Connor, J., concurring).

Even Kendrick, which is the majority’s only support

for its explanation of the purpose prong, see supra n.1,

cuts both ways. After initially positing a “wholly imper-

missible purpose” test, id. at 602, the Court reverses field

in the penultimate sentence of its purpose section: “There

is simply no evidence that Congress’ ‘actual purpose’ in

passing the AFLA was one of ‘endorsing religion.’ ” Id. at

604 (citing Edwards at 589 & 594) (emphasis added).?

Analysis of these cases thus reveals that the Supreme

Court wishes courts to look to the actual or primary or

predominant purpose, rather than to any legitimate secu-

lar purpose. The majority, however, does not even grap-

ple with the dilemma of which formula to apply: any

legitimate secular purpose or of the actual purpose.

Instead, it simply invokes the first without refuting the

second. The majority thus selects a formula that effec-

tively reads the purpose prong out of the Lemon test.

I firmly believe that “primary” or “actual” secular

purpose is both the test that the Supreme Court has

articulated and a far preferable formulation. If a legisla-

ture need merely come up with any secular purpose that

2 In its most recent case on the Establishment Clause,

which obviously postdates Kendrick the Court’s liberal quoting

from Justice O’Connor’s Lynch concurrence makes it clear that

the Court continues to adopt that reasoning. See County of

Allegheny v. American Civil Liberties Union, 109 S. Ct. 3086,

3100-01 (1989).

ne eee

A53

is sincere and not a sham, we have effectively gutted this

prong. For instance, a legislature could decide that a state

building would be enlivened by decoration, surely a rea-

sonable secular purpose, and then install a beautiful

creche on its staircase or a decorated star of David on its

lawn. Both could undoubtedly adorn otherwise dreary

government buildings and thereby create an improved

aesthetic appearance, but I cannot believe either would

pass constitutional muster. A far more logical approach is

to examine whether the central or actual purpose behind

the government’s actions was secular or religious.

Having determined that courts must seek out the

primary purpose, the obvious place to start is the legisla-

tive history. Edwards v. Aguilar, 482 U.S. 578, 594-95

(1987). Though I agree with the majority that the commit-

tee report on the 1939 bill is the best evidence of purpose,

I cannot subscribe to the majority’s exegesis of this

report.

The majority believes that a reading of the long para-

graph from the 1939 committee report, quoted in majority

op. at 10869, demonstrates that “the legislative purpose

for the bill was that Hawaii should have more legal

holidays.” fd. at 10869-70 (internal quotation omitted). |

find such an interpretation baffling. The heart of this

paragraph is the juxtaposition of the following two sen-

tences: ;

Some feel that we already have too many holi-

days to the detriment of both private and public

business. On the other hand, others feel equally

A54

strongly that Good Friday being in theory at

least a day of solemn religious observance by

the members of the various churches and reli-

gious denominations should be given legal sanc-

tion.

Haw. H. Stand. Comm. Rep. No. 254 (H. Bill No. 39),

reprinted in 1939 Haw. H.J. 890. This excerpt makes mani-

fest that the division was not between those who thought

that there were too many holidays and those who thought

there were too few. On the contrary, the division was

between those who wished to create Good Friday as a

legal holiday because of its religious significance and those

who felt there were too many holidays. In mentioning

earlier tabled bills, the majority only reinforces the theory

that earlier refusals to enact Good Friday as a holiday

were finally overridden by the importance of religious

observances of this holy day.

The citations to the legislative history of the 1941 bill,

see majority op. at 10868, are similarly unhelpful to the

majority. The committee report was responding to a bill

proposing both Lincoln’s Birthday and Good Friday as

holidays. The committee “feels that Good Friday should

be set aside as a legal holiday but feels that, inasmuch as

Washington's Birthday is a legal holiday and falls within

the short month of February, to have another holiday

within that month would be inadvisable.” Haw. Sen.

Stand. Comm. Rep. No. 296 (H. Bill No. 154), reprinted in

Haw. Sen. J. 710. This quotation makes no mention of

why the committee felt Good Friday should be adopted

as a legal holiday, only that dates governed the decision

to reject Lincoln’s Birthday. The majority thus greatly

A55

strains its inference in claiming that Good Friday’s selec-

tion was dictated by calendar concerns.

Even if the primary purpose behind creating a new

holiday was secular, the decision to choose the specific

date of Good Friday was not. In other words, if we look

at the decision in two parts - to create a holiday and then

to pick a date — the second decision clearly bore a reli-

gious purpose. It is difficult to think of more perspicuous

language than “in view of the religious significance of

Good Friday.” Rep. No. 254. Though the majority

attempts to get around this, its efforts are unsuccessful.

The committee report also noted that Good Friday is a

“day of solemn religious observance,” Id. The purpose of

picking the date of the Friday before Easter was primarily

motivated by religious concerns. There is no primary

secular purpose for picking that date instead of any other

The majority attempts to rebut this two-part analysis

by relying on the principle of accommodation. There is no

doubt that ” ‘the government may (and sometimes must)

accommodate religious practices and that it may do so

without violating the Establishment Clause.’ ” Corporation

of the Presiding Bishop v. Amos, 483 US. 327, 334 (1987)

(quoting Hobbie v. Unemployment Appeals Comm'n, 480

U.S. 136, 144-45 (1987)). However, the Supreme Court has

made equally clear that “[g]overnment efforts to accom-

modate religion are permissible when they remove burdens

on the free exercise of religion.” County of Allegheny at

3105 n.51 (emphasis added). See id. at 3121 (O'Connor. |

concurring) (“the government can accommodate religion

A56

by lifting government-imposed burdens on religion”);

Wallance v. Jaffree, 472 U.S. 38 (1985) (no need to accom-

modate because “no governmental practice impeding stu-

dents from silently praying,” id at 57 n.45); Amos

(accommodation allowed because Congress imposed a

“significant burden on a religious organization [by]

requir[ing] it... to predict which of its activities a secular

court will consider religious,” id. at 336).%

Just as County of Allegheny found no burden on Chris-

tians wishing to display creches, the evidence has not

established that any exists here for those who wish to

observe Good Friday in a religious manner. In that case,

“Christians remain free to display creches in their homes

and churches,” County of Allegheny, 109 S. Ct. at 3105 n.51,

and here, Christians may take Good Friday off or seek

leave to at least go worship for a few hours. To be sure,

not to_proclaim Good Friday a state holiday “deprives

Christians of the satisfaction of seeing the government

3 The majority argues that “[t]he County of Allegheny foot-

note does not purport to describe the outer limits of permis-

sible accommodation.” Majority op. at 10871 n.15. Since they

have come upon with no cases that push that limit further,

their proposition is mere speculation and can hardly help us in

this case.

Further, the discussion of Zorach v. Clauson, 343 U.S. 306

(1952), is unavailing: Zorach was decided before the Lemon test

was articulated and has never been cited since by a majority of

the Court on the issue of accommodation. Justice Kennedy in

dissent in County of Allegheny relies on Zorach for an accom-

modationist argument, see 109 S. Ct. at 3135 (Kennedy, J.,

concurring in part and dissenting in part), but the present case

represents no more of an example of accommodation than did

the creche display.

A57

adopt their religious message as [its] own, but this kind

of government affiliation with particular religious mes-

sages is precisely what the Establishment Clause pre-

cludes.” Id. Without this statute, Christians would not be

prohibited from honoring Good Friday; rather, the day

would simply not be a public holiday.

In sum, the actual purpose of the Hawaii’s bill was to

“give[ | legal sanction” to the observance of Good Friday.

Rep. No. 254. Since accommodation cannot save this stat-

ute, I believe that it is clearly violative of Lemon’s purpose

prong and thus unconstitutional.

H. EFFECTS

The second prong of the Lemon test requires the

statute’s “principal or primary effect . . . [to] be one that

neither advances nor inhibits religion.” /d. at 612 (citation

omitted). Justice O’Connor’s concurrence in Lynch mod-

ified this somewhat, arguing that the key is “that a gov-

ernment practice not have the effect of communicating a

message of government endorsement or disapproval of

religion.” Id. at 692 (O’Connor, J., concurring) (emphasis

added). This “endorsement” test has since been adopted

by the Court, as County of Allegheny has recently made

Clear. See id. at 3100 (noting cases that have used

“endorsement”). The majority here, not in disagreement,

uses the formula of whether the ” ‘challenged govern-

mental action is sufficiently likely to be perceived by

adherents of the controlling denominations as an

endorsement, and by the nonadherents as a disapproval

of their religious choices.’ ” Majority op. at 10873 (quoting

School Dist. of Grand Rapids v. Ball, 473 US. 373, 390

A58

(1985)). The difficulty, I believe, is that they do not follow

their own test.

The majority supports its effects section with two

different arguments. The first is that this case is similar to

McGowan v. Maryland, 366 U.S. 420 (1961), where the

Supreme Court upheld the constitutionality of Sunday

closing laws. The second is that by placing Good Friday

in the same context as other secular holidays, the state has

negated any impermissible endorsement of religion. After

discussing my objections to both of these theories, I will

explain why I believe this to be a clear instance of state

endorsement of religion.

The majority’s equation of McGowan with this case

implies that Sundays and Good Friday at present have

similar secular effect. To say these are of comparable

secular magnitude is to argue that a candle and the sun

are similar because they both give off light. While Sunday

holds unique meaning for those of many faiths as well as

those of none, Good Friday is still essentially a holiday

with Christian connotations. As the majority noted in

McGowan:

[I]t is common knowledge that the first day of

the week has come to have special significance

as a rest day in this country. People of all reli-

gions and people with no religion regard Sun-

day as a time for family activity, for visiting

friends and relatives, for late sleeping, for pas-

sive and active entertainments, for dining out,

and the like . . . Sunday is a day apart from all

others.

A59

Id. at 451-52; see also id. at 507 (Frankfurter, J., concurring)

(“For to many who do not regard it sacramentally, Sun-

day is nevertheless a day of special, long-established

associations, whose particular temper makes it a haven

that no other day could provide.”) (emphasis added).

Good Friday, on the other hand, carries no such

wide-ranging appeal. We need think only of the school-

child who asks her teacher why she gets Sundays and

Good Fridays off. The answer must be that the former are

days of rest and the latter a commemoration of the death

of Jesus Christ. Selecting a state holiday does much more

than enable citizens to relax; it communicates a critical

message about the state’s priorities. See, infra, section II-

C. While the present effect of Sunday is not to favor one

sect over another, that of Good Friday endorses Chris-

tianity. As County of Allegheny underscored:

Whatever else the Establishment Clause may

mean... it certainly means at the very least that

government may not demonstrate a preference

for one particular sect or creed (including a

preference for Christianity over other religions).

The clearest command of the Establishment

Clause is that one religious denomination can-

not be officially preferred over another.

Id. at 3107 (internal quotation omitted).

The majority also argues that this holiday has been

ongoing for fifty years and thus may be analogized to

Sunday closing laws. Yet the majority earlier admitted

that the “unique history” of legislative prayer in Marsh v.

Chambers, 463 U.S. 783 (1983), did not apply to this case.

Majority op. at 10863. Sunday has a history far more

intertwined with our nation’s founding than Nebraska's

A60

legislative prayer. In fact, Sunday restrictions were in

force two cesturies before Nebraska even entered the

union. See McGowan, 366 U.S. at 433. Thus if Marsh is not

applicable to this case because Good Friday as a holiday

has not attained the unique character of Nebraska legisla-

tive prayer, certainly McGowan cannot apply either. Fur-

thermore, County of Allegheny points out that not “all

accepted practices 200 years old and their equivalents are

constitutional today.” Id. at 3106. If 200 years does not

necessarily suffice to sanitize an otherwise violative

establishment of religion, then the fact alone that

Hawaii's practice has occurred for 50 years is similarly of

little value.4

The majority mentions, in addition, that Good Friday

“has become a popular shopping day in Hawaii,” majority

op. at 10875, and notes the economic benefits to busi-

nesses because of the holiday. I do not gainsay the remu-

nerative nature of the holiday for business, but this is an

ancillary result, not a secular effect, of any state holiday.

See Lynch, 465 U.S. at 685 (“That the display brings people

into the central city, and serves commercial interests and

benefits merchants and their employees, does not... de-

termine the character of the display.”).

4 Marsh and McGowan are cases that are largely based on

particular laws’ history being intertwined with the state’s secu-

lar life. Good Friday should not receive similar judicial! dispen-

sation, for while “[t]here have been breaches of this command

[“that one religious denomination cannot be officially prefer-

red over another”] throughout this Nation’s history, . . . they

cannot diminish in any way the force of the command” County

of Allegheny, 109 S. Ct. at 3107.

Aél

Finally, to argue that Christian employees alone are

not given the cay off is to erect a man of material flimsier

than straw. The fact that such a statute would be so

patently unconstitutional does not shed any light on the

present one. Christians and nonChristians alike were free

to gaze upon Allegheny’s creche, but that quite obviously,

did not cure the constitutional flaw.

B. :

The Court in County of Allegheny reminds us of

another crucial aspect of the effects prong: context. A

majority of the Court noted that under Lynch “the effect

of a creche display turns on its setting. Here, unlike in

Lynch, nothing in the context of the display detracts from

the creche’s religious message.” Id. at 3103-04 (emphasis

added). The menorah in County of Allegheny was linked

with a tree, the creche in Lynch was placed amidst other

secular symbols, and the funds in Bowen were disbursed

to religious and nonreligious groups, and all were upheld

as constitutionai. Without any countervailing secular con-

text, the creche in County of Allegheny was found to have

violated the Establishment Clause. Here the legislature

has created a “creche alone” situation in its declaration of

Good Friday as a state holiday. No secular mitigating

factors appear to lend context to this decision or to offset

the religious nature of this day. 7”

The majority’s context argument is that Good Fri-

day’s placement on the roll of public holidays amidst

secular days diminishes its endorsing effect. Majority op.

at 10878. The context, in other words, is the list of holi-

days. Such an argument cannot be maintained. This is

A62

equivalent to saying that if the state erected secular dis-

plays on assorted sites, this would balance a creche on

another site. Just as the context in that example should

not be all displays anywhere in the state or even city, the

context here cannot be all holidays, regardless of how

temporally far apart.° Furthermore, under the majority’s

context rationale, the state could decide tomorrow that all

of holy week or any of the numerous saints’ days should

be holidays and that their placement on the holiday roll

would be balanced by all the other secular holidays. It

seems that the majority would support as a state holiday

any uniquely religious day on the grounds that because it

is a state holiday, it must be of primarily secular content.

A greater switch in cause and effect is difficult to imag-

ine. The reason that the holiday roll is filled with patriotic

° Even were we to buy into this dubious notion that the

holiday roll should be the context, Good Friday is not aided. In

such a circumstance, the only holidays with any religious

origin — Thanksgiving, Christmas, and Good Friday - all

belong to the Christian faith. Even Justice Kennedy, who

thought that both displays in County of Allegheny were consti-

tutional, agrees:

[I]f a city chose to recognize, through religious dis-

plays, every significant Christian holiday while

ignoring the holidays or all other faiths, the argu-

ment that the city was simply recognizing certain

holidays celebrated by its citizens without establish-

ing an official faith or applying pressure to obtain

adherents would be much more difficult to maintain.

County of Allegheny, 109 S. Ct. 3139 n.3 (Kennedy, J., dissent-

ing).

A63

and secular days is because the state may not make any

laws respecting the establishment of religion.®

The majority’s other point in its discussion on context

is that a state’s “mere calendar recognition” of a religious

holiday is less of an endorsement of religion than public

displays of religious symbols. Majority op. at 10878-79.

This argument is no more tenable than the last. “Mere

.calendar recognition” is a euphemism for “state-declared

holiday.” The majority believes that the state’s declara-

tion-of a public holiday and its closing of state offices on

a purely religious day is somehow less of an endorsement

of Christianity than is the erection of a crucifix on state

property, and it notes that the display cases have not held

to the contrary. Those cases, though, have never dis-

cussed the constitutionality of state declarations of purely

religious days as public holidays. I believe that such an

establishment of religion is clearly more offensive than

state decorations with religious themes.

¢ The textual sentence that precedes Justice Brennan’s

footnote that the majority cites, see majority op. at 10878, states

that “it is clear that the celebration of Christmas has both

secular and sectarian elements.” Lynch, 465 U.S. at 710 (Bren-

nan, J., dissenting). His point is that because Christmas is

secular, it is on the list of holidays. The footnote admittedly

proves the obverse by saying that we may infer its secular

context from the company it keeps. Id. at 667 n.16. The ultimate

point, however, is that Justice Brennan does not state or imply

that simple inclusion on the holid@y roll confers secularity.

A64

Cc.

Overall, I cannot believe that the establishment of

Good Friday as a state holiday can survive the endorse-

ment test. As Justice O’Connor stressed in her County of

Allegheny concurrence,

If government is to be neutral in matters of

religion, rather than showing either favoritism

or disapproval towards citizens based on their

personal religious choices, government cannot

endorse the religious practices and beliefs of

some citizens without sending a clear message

to nonadherents that they are outsiders or less

than full members of the political community.

Id. at 3119 (O’Connor, J., concurring). In this case, the

legislature sends the message to nonChristians that it

finds Good Friday, and thus Christianity, to be a religion

worth honoring, while their religion or nonreligion is not

of equal importance. In fact, the government promotes

Western Christians above Eastern Christians, whose Eas-

ter and Good Friday almost always fall on different dates.

By declaring Good Friday a holiday, the state places its

imprimatur on both the Christian rites and practices

observed on that day and to Western Christianity in

general. No other state holiday in the calendar bears

anywhere near the religious implications of Good Friday,

with the exception of Christmas, whose religious and

secular traditions are intertwined. See infra section IV.

remote,” or

“al

Hawaii's benefit to religion is not “indirect,

“incidental,” see Lynch at 683; on the contrary, it is an

open and obvious bestowal of approval on a critical reli-

gious day for Western Christians.

A65

To order time and mark its passing are unique means

by which communities define themselves. In selecting

particular state holidays, the polity does more thar. honor

the past; it identifies the people, events, and values from

which it draws inspiration and seeks guidance. The cele-

brations provide a sense of continuity with remote times,

bestowing upon the present the virtues of the past.

Hawaii's decision, therefore, should not be dismissed as a

bagatelle or applauded simply because it provides an

additional day of repose; on the contrary, it should be

regarded as a weighty, solemn statement, at once reflect-

ing and shaping the collectivity’s character.

The majority, | fear, underestimates the importance of

such decisions. And yet, we are reminded daily of their

role and significance to people around the globe. The

French Jacobins are perhaps the most apt example in their

swift introduction of their own calendar, which bore new

names for months and even dated their accession to

power as Year I. In the Third World, victorious revolu-

tionary movements are quick to solemnize historical

dates: e.g., November Ist in Algeria, July 26th in Cuba. At

this very moment we wonder how long October 17th will

remain a national holiday in the Soviet Union. Indeed,

the majority need not have searched so for in time or

space, as fierce debates over the celebration of Martin

Luther King Day attest to our own extreme sensitivity to

this issue.

There is, as | have explained, good reason for such

emotional reactions. By honoring a given day, the state

endorses an event as a fair reflection of its beliefs; it

establishes that event as a privileged repository of its

values. Despite the potential for impassioned disputes, a

A66

state is free to do this as far as secular occurrences are

concerned — hence the 4th of July, Presidents’ Day, Labor

Day, or Memorial Day. But the First Amendment must

exclude from this list those days that are remembered for

their religious significance alone. Today, and with the

blessing of the majority, we are told that it need not. I

believe that by declaring Good Friday a state holiday,

Hawaii has endorsed a day thoroughly infused with reli-

gious meaning; such endorsement has

[t]he effect on minority religious groups, as well

as on those who may reject all religion, . . . [of

conveying] the message that their views are not

similarly worthy of public recognition nor enti-

tled to public support. It was precisely this sort of

religious chauvinism that the Establishment

Clause was intended forever to prohibit.

Lynch at 701 (Brennan, J., dissenting) (emphasis added)

(internal footnote omitted). I am unable to countenance

such an endorsement.

HI. ENTANGLEMENT

Lemon's third prong states that “the statute must not

foster an excessive government entanglement with reli-

gion.” Id. at 613 (internal quotation and citation omitted).

Though I am troubled by the necessity of having the

Western Christian Church dictate the date of a State

holiday each year, I would probably concur with the

majority that this is not the sufficiently enduring entan-

glement required to invalidate the law. Further, while |

am also concerned by the political divisiveness engen-

dered by such a law, since Buddhists and others have

sought to have their religious holidays similarly honored,

A67

I also agree with the majority that this is not sufficient

alone to overturn the holiday’s establishment. I do not

agree, however, that the timing of other religious groups’

efforts to enact other state holidays is at all dispositive. In

any event, since I would overturn the law on either the

purpose or effects prongs, I will not venture to say

whether the combination of the date and the political

divisiveness would suffice to create political entangle-

ment.

IV. GOOD FRIDAY, CHRISTMAS, AND THANKSGIV-

ING

The district court made the additional effort to show

that Good Friday is of a similarly secular nature as

Christmas and Thanksgiving. Cammack v. Waihee, 674 F.

Supp. 1524, 1539 (D. Hawaii 1987) (“this court concludes

that Good Friday and Christmas stand on equal footing

before the First Amendment”). It is true that the majority

does not “accept the contention” that the observance of

Good Friday has become secularized to the same extent

as celebrations of Christmas and Thanksgiving. Majority

op. at 10882 n.19. Yet it still notes that the average Hawai-

ian would view the inclusion of Good Friday as a holiday

as no more of an establishment of religion than

Christmas, id. at 10882, relies on Thanksgiving and

Christmas as religious holidays in its context section, id.

at 10878-79, and makes other analogies between

Christmas and Good Friday as religious holidays. Id. at

10879. Because I strongly disagree with the theory that

Good Friday may be compared in its religious and secular

A68

makeup with Thanksgiving and Christmas, | add this

section.

First and foremost, I do not think that the Supreme

court agrees either. For example, “[a]s observed in this

Nation, Christmas has a secular as well as a religious

dimension.” County of Allegheny, 109 S. Ct. at 3093 (foot-

note omitted). In fact, “[i]Jt has been suggested that the

cultural aspect of Christmas in this country now exceeds

the theological significance of the holiday.” Id. at n.3.

Justice O’Connor has noted, “[T]he celebration of Thanks-

giving as a public holiday, despite its religious origins, is

now generally understood as a celebration of patriotic

values rather than particular religious beliefs.” Id. at 3121

(O’Connor, J., concurring). Justice O’Connor continued,

“Christmas is a public holiday that has both religious and

secular aspects...” Id. at 3122 (O’Connor, J., concurring).

See also Lynch (Christmas “has very strong secular compo-

nents and traditions.” [465 U.S.] at 692 (O’Connor, J.,

concurring)).7

? See also American Civil Liberties Union v. City of St. Charles,

794 F.2d 265, 271 (7th Cir. 1986), where Judge Posner explained:

Christmas is a national holiday, celebrated by nonob-

servant Christians and many nonChristians as well

as by believing Christians. It owes its status, in part

anyway, to the fact that most Christmas symbology

either is unrelated to Christianity or is no longer

associated with it in popular understanding. There is

nothing distinctively Christian about reindeer, Santa

Claus, gift-giving, eggnog, tinsel, toys, retail sales,

roast goose, or the music (as distinct from the words)

of Christmas carols.

A69

Though the Court has not mentioned Good Friday, it

has spoken on Easter: “The Easter holiday celebrated by

Christians may be accompanied by certain ‘secular

aspects’ . . . but it is nevertheless a religious holiday.”

County to Allegheny, 109 S. Ct. at 3122 (O’Connor, J.,

concurring). If Easter, the Easter Bunny notwithstanding,

is still in essence a religious holiday, what does that say

about Good Friday? Simply stated, good Friday has no

secular symbols or accompanying secular celebration.

On one side of the holiday ledger we may place

secular symbols: stockings, Santa Claus, elves, reindeer;

and pilgrims, Native American maize, turkey, and cran-

berry; on the other side we place religious symbols:

creches, menorahs, palms, and crucifixes. While Good

Friday is associated with the religious symbol of Jesus

Christ on the cross, it is, very much unlike Thanksgiving

and Christmas, associated with no secular symbols at all.

In fact, I think that we would insult observing Christians

by characterizing Good Friday, a solemn day of worship

and reflection on the death of Jesus Christ, as a day of

convivial secular celebration. Easter, perhaps because it is

a celebration of Jesus’ resurrection, does have some secu-

lar components such as egg hunts and chocolate bunnies,

and may, in this fashion, begin to approach Thanksgiving

and Christmas. Good Friday, bereft of secular symbols or

joyous festivity, simply does not belong in the same cate-

gory. Indeed, while the death of Jesus Christ dominates

Good Friday, for many, the reigning images of Christmas

are the secular Ghosts of Christmas Past, Present, and Yet

to Come.

Another telling example is that people of many reli-

gions or of no religion at all celebrate Thanksgiving and

A70

even Christmas, but it would be difficult to find atheists,

Jews, or Baha’is engaging in Good Friday commemora-

tions. Christmas, indeed, may be seen as a whole season,

which the man who is perhaps its greatest secularizer

described as “a good time; a kind, forgiving, charitable,

pleasant time; the only time I know of, in the long calen-

dar of the year, when men and women seem by one

consent to open their shut-up hearts freely, and to think

of people below them as if they really were fellow-pas-

sengers to the grave, and not another race of creatures

bound on other journeys.” Dickens, A Christmas Carol 8-9

(Bantam ed. 1986). To say that such an ecumenical spirit

pervades Good Friday is simply untenable. I must agree

that there is no evidence that “the Christian holy day of

Good Friday has become secularized in any degree dur-

ing the course of its longtime observance by Christian

sects.” Mandel v. Hodges, 54 Cal. App. 3d 596, 612 (1976).

Indeed, “the passage of time has not converted Good

Friday into a secular holiday or freed it of its clearly

religious origins.” Griswold Inn, Inc. v. State, 441 A.2d 16,

21 (Conn. 1981) (holding state law banning liquor sales

on Good Friday unconstitutional).

I find this equation of Good Friday with Christmas

and Thanksgiving both distasteful to practicing Chris-

tians, who do not wish a serious day permeated by mirth

and levity, and unsettling to adherents of other religions

OKNOnreligious persons, who would not desire their secu-

I, therefore, respectfully dissent.

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APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

NELL A. CAMMACK,

et al.,

CIVIL NO.

87-0260

(Filed Nov. 23, 1987)

Plaintiffs,

JOHN WAIHEE, et al.,

)

VS. )

)

Defendants. )

)

ORDER DENYING PLAINTIFFS’ MOTION FOR SUM-

MARY JUDGMENT AND GRANTING DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

Background

In 1941, the legislature of the Territory of Hawaii

enacted a.statute which declared Good Friday, the Friday

preceeding Easter, to be a legal holiday. This statute,

which is now codified as Hawaii Rev. Stat. § 8-1, provides

in pertinent part that Good Friday is “set apart and

established as [a] state holiday[].”

In 1970, the Hawaii legislature enacted a statute

which recognized that “joint decisionmaking [between

public employees and their employers] is the modern

way of administering government.” Hawaii Rev. Stat.

§ 89-1. Accordingly, the legislature mandated that terms

of public employment were to be determined through a

process of collective bargaining. It is agreed by all parties

hereto that the number and dates of paid leave days is a

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mandatory subject of collective bargaining. All collective

bargaining agreements currently in effect between public

employees and their employers state, either expressly or

through incorporation of Hawaii Rev. Stat. § 8-1, that

Good Friday is a paid leave day. These collective bargain-

ing agreements cover approximately 65% of Hawaii's

public employees.

The plaintiffs in this action have filed a suit praying

this court for a declaration that the Hawaii statute which

sets aside Good Friday as a legal holiday is unconstitu-

tional as violative of the United States and Hawaii Con-

stitutions. The plaintiffs’ argument is premised on the

Establishment Clause of the United State’s Constitution’s

First Amendment, and Article I, Section 4 of the Hawaii

Constitution. The plaintiffs also ask this court to rule that

the collective bargaining agreements which provide for a

day of paid leave on Good Friday are violative of the

subject constitutional provisions.

This case came before the court on the plaintiffs’ and

the defendants’ cross-motions for summary judgment.

This court, having considered the memoranda in support

of and in opposition to the motions, the record on file,

and the arguments of counsel finds and orders as follows.

Il.

Standing

The defendants argue that the plaintiffs in this action

lack standing to prosecute their suit. This court finds that

the defendants’ argument is not persuasive.

A73

In Flast v. Cohen, 88 S.Ct. 1942 (1968), the plaintiffs

brought suit to enjoin the allegedly unconstitutional

expenditure of federal funds and argued that their stand-

ing to bring the suit derived from their status as tax-

payers. The Court held that taxpayer standing was

available to the plaintiffs, finding “no absolute bar in

Article III to suits by federal taxpayers challenging

allegedly unconstitutional federal taxing and spending

programs.” Id. at 1953. The Court went on to write in

Flast, however, that mere taxpayer status is insufficient to

establish standing to challenge an allegedly unconstitu-

tional tax or expenditure. “[I]nquiries into the nexus

between the status asserted by the litigant and the claim

he presents are essential to assure that he is a proper and

appropriate party to invoke federal judicial power.” Id.

Thus, even a taxpayer must present an Article III “case or

controversy” before he or she may have a day in court.

The contours of an Article III “case or controversy”

were defined by the Supreme Court in Valley Forge Chris-

tian College v. Americans United for Separation of Church and

State, Inc., 102 S.Ct. 752 (1982). In Valley Forge, the Court

wrote that.

“at an irreducible minimum, Article III requires

the party who invokes the court’s authority to

‘show that he personally has suffered some

actual or threatened injury as a result of the

putatively illegal conduct of the defendant,’ and

that the injury ‘fairly can be traced to the chal-

lenged action’ and ‘is likely to be redressed by a

favorable decision.’

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Id. at 758 (citations omitted). The Valley Forge opinion also

firmly established that taxpayer standing is only appro-

priate in those cases in which legislative action pursuant

to the taxing and spending powers is challenged. Id. at

762-64. Finally, it should be noted that while Flast and

Valley Forge both dealt with challenges to an action taken

by the federal legislature, subsequent opinions of the

Supreme Court have extended taxpayer standing to par-

ties who have challenged the actions of state legislatures.

See for example Grand Rapids School District of the City of

Grand Rapids v. Ball, 105 S.Ct. 3216, 3221 n. 5 (1985) (the

Court has adjudicated cases involving Establishment

Clause challenges to state expenditures).

Applying the foregoing precepts to the instant case

leads this court to the conclusion that the plaintiffs herein

have adequately established their entitlement to a day in

court. As in Flast, the plaintiffs in this case have alleged

that the Hawaii legislature expends substantial sums of

money each year to advance religion. Specifically, the

plaintiffs have provided this court with evidence sup-

porting a claim that the personnel costs which are

incurred each year in order to give those public

employees who are covered by a collective bargaining

agreement a day of paid leave on Good Friday amount to

$3,400,000.00.

In Lynch v. Donnelly, 104 S.Ct. 1355 (1984), the

Supreme Court adjudicated a case, apparently premised

on taxpayer standing, in which the plaintiffs challenged

the constitutionality of a city’s decision to include a

creche in an annual Christmas display. The creche, whose

inclusion in the display gave rise to the alleged injuries in

Lynch, was acquired by the city for $1,365.00. The annual

is oesistatineletenenneneememmaiel

A75

expenses for erecting and dismantling the creche

amounted to approximately $20.00 each year. Obviously,

the state’s annual expenditure in the instant case,

amounting to millions of taxpayer dollars, far out-

shadows the apparent challenged expenditure, and con-

comitant injury, which the Lynch court found to give rise

to a justiciable Establishment Clause challenge. This court

further notes that the taxpayer standing in the Lynch case

may have derived from the federal government's expen-

diture of millions of dollars necessitated by granting fed-

eral employees a paid holiday on Christmas. Id. at

1360-61. Thus, if the Supreme Court found no standing

problem that would bar adjudication of the dispute in

Lynch, it is unlikely that it would find a standing problem

in the instant case.

This court also finds that a favorable ruling in this

case would remedy the plaintiffs’ injuries. As noted

above, the plaintiffs argue that they are injured because

Hawaii Rev. Stat. § 8-1 impermissibly advances religion,

and that therefore, the monies which are expended from

the public fisc to effect the statute’s mandate is an uncon-

stitutional expenditure. If this court strikes down Hawaii

Rev. Stat. § 8-1 as constitutionally flawed, the alleged

entanglement between the State of Hawaii and religion

would be terminated. Similarly, if this court finds that the

subject collective bargaining agreements contain a fatal

constitutional defect, the plaintiffs’ alleged injuries would

be remedied; either the collective bargaining agreements

would be voided as contrary to public policy, or the

collective bargaining agreements would have to be

revised in the next round of negotiations to reflect the

A76

unconstitutionality of including Good Friday as a paid

leave day.

For the foregoing reasons, this court finds that the

plaintiffs have standing to raise their constitutional chal-

lenge in federal court.

II.

Abstention

The defendants in this case have argued that this

court should abstain. The defendants maintain that the

state courts of Haw

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