Hawaii's Good Friday Holiday - What's Up With That?

by Robert Thomas, InverseCondemnation.com (Originally published April, 2012)  

If you are wondering why the doors to most state, county, and city offices are locked today, remember that it isn't another "furlough Friday," or the day HGEA is voting on its new contract. No, today is the day that Hawaii celebrates Good Friday.

If you ask how "a religious holiday observed primarily by Christians commemorating the crucifixion of Jesus Christ and his death at Calvary" squares with the Establishment Clause of the First Amendment, let us explain O Unenlighted One. Here's our annual recounting of the how's and the why's.

Good Friday is a legal holiday in the State of Hawaii pursuant to Haw. Rev. Stat. § 8-1. The day of the crucifixion was originally made a holiday in 1941 by the Territorial Legislature. The statute was recodified upon statehood in 1959, and the holiday has been confirmed via Haw. Rev. Stat. § 89-1, the law that makes the establishment of public holidays -- among many other things -- a product of what the statute calls "joint decision-making" process between the government and the government employee unions (also known as collective bargaining -- and here it was you thought that elected representatives made laws).

The Establishment Clause, which has been incorporated against the states by the due process clause of the 14th Amendment, prohibits the government from establishing an official religion (the so-called separation church and state), and in 1987, several Hawaii taxpayers challenged the designation of Good Friday as a public holiday because it was plainly -- they claimed -- a religious, not secular observance. The Hawaii federal court held otherwise in Cammack v. Waihee, 673 F. Supp. 1524 (D. Haw. 1987), concluding among other things that the Legislature made Good Friday a holiday to insure that public workers have more days off, not to make sure they were religious:

[T]he Good Friday holiday was primarily proposed to increase the frequency of legal holidays. It is also noteworthy to point out, as does the State in this case, that the legislative report seems to acknowledge that Good Friday is not an entirely religious day. The 1939 report characterizes Good Friday as in theory at least a day of solemn religious observances, apparently reflecting the legislature's sentiment that Good Friday had lost much of its religious nature and had become a holiday similar in nature to Thanksgiving or Christmas which have been secularized to some extent over the centuries. Indeed, this court is also of the opinion that Good Friday has attained a secular character; for the majority of Americans Good Friday has become more an integral part of a traditional three day secular celebration of Spring which begins on Good Friday and continues through Easter Sunday than a solemn observance of Jesus Christ's crucifixion.

This court concludes that the secular purpose behind the establishment of the Good Friday is manifest. The legislature does not offend the First Amendment by enacting a statute intended to ensure that the people of Hawaii have an adequate number of leave days. This court further concludes that any ancillary sectarian purpose which the legislature may have had in establishing Good Friday as a holiday is not fatal to the Hawaii Rev. Stat. § 8-1, since a clearly secular purpose for the statute exists and since Good Friday, like Christmas, has become secularized to some extent over the centuries.

An examination of the effects of Hawaii Rev. Stat. § 8-1 leads this court to the conclusion that the legislature's intended purpose in declaring Good Friday to be a legal holiday has been fulfilled. While the plaintiffs argue that the effect of the Good Friday statute is to give Christian sects the imprimatur of State approval, an analysis of the effects of the statute compels this court to find that the secular effects of the statute significantly predominate over the sectarian effects of the statute.

The Ninth Circuit affirmed. See Cammack v. Waihee, 932 F.2d 765 (9th Cir. 1991). The majority of the three-judge panel noted that many people in Hawaii use the Good Friday holiday to go shopping, and held "[i]t 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 identified the need." The court concluded that the presence of a plausible secular purpose for enacting the law made the holiday's religious nature effectively irrelevant; to violate the Establishment Clause, the legislature must have intended the Good Friday holiday to only serve a religious purpose:

We conclude that the Hawaii statute has a legitimate, sincere secular purpose, specifically to provide Hawaiians with another holiday, and thus is not motivated wholly by an impermissible purpose. There is nothing impermissible about considering 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 widespread religious practices of its citizenry is hardly a reason to invalidate the statute.

(citation omitted). One judge dissented, arguing that a day off for Good Friday was not in any sense secular, and was a government endorsement of religion:

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. 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, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). I respectfully dissent.

The dissenting judge argued that the court's duty is to seek out whether the legislature had a primarily religious purpose, rather than whether it had any legitimate secular purpose.

So go shopping, or go to the beach today folks. If you do go to church, it's "of no constitutional moment."