Court Upholds Hawaii on Its Good Friday Holiday

Over the vigorous dissent of several judges, a federal appeals court in San Francisco on Tuesday upheld Hawaii’s right to maintain Good Friday as an official state holiday.

The U.S. 9th Circuit Court of Appeals announced that a majority of the circuit’s 27 judges had voted against granting a rehearing to the five Hawaii taxpayers who launched a constitutional challenge to the statute.

But a group of the judges warned that the majority was allowing an unprecedented, unconstitutional establishment of religion.

“For the first time, a court has held that a purely religious holy day may be made an official state holiday,” wrote Judge Stephen Reinhardt, whose opinion was joined by four other judges in San Francisco.

“Good Friday is a wholly sectarian holiday. By contrast with Sunday, Thanksgiving and Christmas--each of which has come to have secular significance--there is no recognizable secular tradition surrounding Good Friday. Good Friday connotes the Crucifixion--and nothing else,” wrote Reinhardt.

Reinhardt also asserted that permitting Good Friday to be a state holiday had ramifications beyond the issue of religion, saying: “The majority opinion reflects a growing willingness to accept the imposition of majoritarian control at the expense of individual rights.”

Hawaii is one of 13 states that have declared Good Friday a holiday.

At least three state courts, including one in California, have struck down Good Friday laws on the grounds that they violate the Constitutional provision prohibiting the government from, in effect, endorsing any religion.

In the first federal court case on the issue, however, a panel of 9th Circuit judges ruled 2-to-1 in April that the Hawaii holiday was legal.

In that decision, Appeals Court Judge Diarmuid F. O’Scanlain said the Hawaii statute had a legitimate, secular purpose of creating more holidays. By making Good Friday one of them, the state was not advancing the cause of a particular religion, he said.

“We are persuaded that nothing more is ‘established’ by the Hawaii statute than an extra day of rest for a weary public labor force,” O’Scanlain wrote.

Judge Dorothy W. Nelson dissented, saying: “The holly and the ivy, jingling bells, red-nosed reindeer, and frosty snowmen this is not. What this case is about is Hawaii’s endorsement, by means of a state holiday, of a day thoroughly infused with religious significance alone.”

Nelson contended that legislative history demonstrated clearly that the Hawaii Legislature had a religious purpose in mind when adopting the holiday. She also noted that the Hawaii Legislature had spurned requests from Buddhists and Bahais to make their religious holidays official state holidays.

The 9th Circuit did not announce the vote upholding the earlier decision. But in addition to the four judges who joined Reinhardt’s dissent, two others issued dissents. It is unusual, though not unprecedented, for such a sizable number of judges to make public their positions on a circuit court vote for a rehearing.

Stephen S. Michaels, deputy attorney general who argued the case for Hawaii, said he was pleased with the ruling and expressed confidence that it would be upheld by the Supreme Court if there is a further appeal.

Hawaii’s law has been on the books since 1941, well before it became a state. It provides that all state employees get Good Friday as a paid holiday, a benefit incorporated into contracts between the state and unions representing those employees.

Kirk Cashmere, one of the lawyers for the plaintiffs, said they decided to challenge the law in 1987 for a variety of reasons. One plaintiff, Genie Lucas is “a devout Catholic parochial school teacher who found it offensive that government was trivializing a solemn, Christian holiday,” he said.

Several constitutional law experts said the Supreme Court has been grappling for years with the issue of what constitutes an establishment of religion, issuing a number of murky decisions on the subject. Among the tests the top court normally applies are whether the law in question has the purpose or the effect of advancing religion.

Douglas Laycock, a professor at the University of Texas Law School, said he thought the decision was reasonable. Hawaii “ought to be able to close its offices on (certain) religious holidays as long as it accommodates people of other religions on their holidays,” he said.

But UC Berkeley law professor Jesse Choper said he was troubled by the decision. “It’s very hard to say that neither the purpose or the effect of this law is to advance religion. . . . There is nothing secular about Good Friday.”