# Petition for Writ of Certiorari — Cammack v. Waihee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2032%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 505 U.S. 1219 ## Text ——"* 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 o 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 nN 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 il 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 iv 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 © Oh ecned cen caea see ene ee A-122 vi 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 a rt i oe eee ae 2 er ee a ok bn Wire Te ee pans oo cee eee 7 aa ees 66. sive Skah. ca ee eee ees 7 Bik TSE, Tee Te ee GE ii ee conn eheene ees 6 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 eee, Ti ae Oe tee eee 17 PERE. TOU, De es 6a ok 04 os Be Ea ere 17 LecisLaTiveE MATERIALS ee A PP Ce ee ee ere 3 OST PUR ThE. Tes ko oie hc fa ghd ee ee 4 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-__ e In The Supreme Court of the United States October Term, 1991 S NELL A. CAMMACK, et al., Petitioners, v. 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). 10 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 11 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). 12 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 ===<=<<—<§<=—§ — 13 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. 14 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 | 15 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. 16 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. 17 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. 18 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. ¢ 19 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 Al 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 A2 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 A3 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 A4 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 A5 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 A7 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. A8 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 _—— AY 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 I 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. I] 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. I] 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 A 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). © There is no distinction between “defendants” or “plain- tiffs” for the purposes of becoming “appellants” before this court. ie 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.” B 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 [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. 2 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). 3 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 IV 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)). A 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. B 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). 1 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 a [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). | ' i ' 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 b 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). Cc [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. 3 [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. V [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 A. 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