Cammack v. Waihee
| Decision Date | 13 August 1991 |
| Docket Number | No. 87-15073,87-15073 |
| Citation | 944 F.2d 466 |
| Parties | Nell A. CAMMACK; Genie Lucas; Douglas Paul Root; Carolyn L. Stapleton; Michele Wallace, Plaintiffs-Appellants, v. John W. 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 & County of Honolulu; Jeremy Harris, in his capacity as Managing Director of the City & County of Honolulu; Loretta K. Fukuda, in her capacity as the Director of Civil Service of the City & County of Honolulu; United Public Workers, Local 646, AFSCME; Hawaii Government Employees' Association, Local 152, AFSCME; Hawaii State Teachers Association; University of Hawaii Professional Assembly; Hawaii Fire Fighters Association, Local 1463, IAFF; State of Hawaii Organization of Police Officers, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before D.W. NELSON, O'SCANNLAIN and TROTT, Circuit Judges.
A majority of the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. Judge D.W. Nelson would grant the petition for rehearing and accept the suggestion for rehearing en banc.
The full court has been advised of the en banc suggestion. An active judge called for an en banc vote, and a majority of the active judges of the court has voted to reject the suggestion for rehearing en banc. Fed.R.App.P. 35.
The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.
For the first time, a court has held that a purely religious holy day may be made an official state holiday. Good Friday, the annual date on which Western Christians commemorate the crucifixion of Jesus Christ, is by law a public holiday in Hawaii. State and local government offices are closed and most public employees receive paid leave. By making Good Friday a public holiday, the Hawaii statute officially consecrates that event. It incorporates a purely religious holy day into the state calendar and says to those not of the majority religion: "Thou shalt celebrate this religious occasion." By doing so, the state of Hawaii establishes religion in violation of the Constitution. Nevertheless, by a 2-1 vote, a panel of this court found the Hawaii statute constitutional. Our refusal to reconsider that decision en banc substantially undermines one of the First Amendment's most critical provisions.
It is not surprising that the Hawaii legislature selected Good Friday rather than, say, Yom Kippur or Ramadan as the date for its additional state holiday. Good Friday is after all the holy day celebrated by members of the majority religion in this country. There are many reasons to be concerned when the government seeks to clothe itself in the religious ritual of the majority, not the least of which is the effect upon those with different views. By consecrating a Christian holy day, the Hawaii legislature has effectively sent the rest of the population a message. That message is not only that the state officially recognizes the religious preference of the majority, but more important, that the state considers the beliefs of those in the minority to be unworthy of similar respect. 1 While official recognition of any or all religions is prohibited by the constitution, the preference of the majority religion over all others is certainly among the principal offenses the first amendment condemns.
Additionally troubling is the impact this message will have on children for whom school is closed on Good Friday. How can parents forthrightly explain to their children the reasons for the official school holiday except by stating that it commemorates Our refusal to grant en banc consideration is disturbing for other reasons as well. The significance of our decision in this case goes beyond the issue of religion: the majority opinion reflects a growing willingness to accept the imposition of majoritarian control at the expense of individual rights. Ours is a heterogeneous society in which tolerance of different ideologies and views has historically been enforced and encouraged through the first amendment. Yet in recent years we have witnessed increasing legislative restrictions on individual freedom in laws regulating religious practice, sexual conduct, and nonobscene expression. And we have witnessed an increasing willingness on the part of the judiciary to allow the social, moral, and cultural precepts of the majority to dictate the choices available to those with different views.
the crucifixion of Jesus Christ? Such an explanation is sure to arouse feelings of discomfort, of differentness, of isolation from their teachers and classmates in non-Christian school children, who are even more susceptible to feelings of social alienation than are their parents. See Edwards v. Aguillard, 482 U.S. 578, 584-85, 107 S.Ct. 2573, 2577-78, 96 L.Ed.2d 510 (1987); School District of Abington Township v. Schempp, 374 U.S. 203, 289-90, 83 S.Ct. 1560, 1606-07, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring). It is unfortunate that, still today, so many adherents of the majority religion fail to comprehend the psychological effect that the state's endorsement of that religion has upon children whose views and upbringings differ from their own
We are creeping closer and closer to a state-imposed orthodoxy--an orthodoxy firmly outlawed by a Bill of Rights that the courts are supposed to enforce with vigilance. Our ruling upholding the official consecration of Good Friday is an unfortunate step toward that state of orthodoxy, toward the establishment of an officially preferred ideology governing the views and conduct of all Americans. While the sanctioning of an official religious holiday may appear to be only a minor Constitutional violation, every measure by which the majority is enabled to exert dominion over the personal beliefs and values of the minority does serious injury to our fundamental liberties. 2
The decision which we refuse to consider en banc is clearly contrary to existing legal doctrine. As the following brief review of the central legal issues demonstrates, the Hawaii law violates both the "purpose" and "effect" prongs of the Lemon test. See Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). However the majority opinion does not merely misapply the law; it creates a substantially weaker Establishment Clause jurisprudence in our circuit. It is particularly unfortunate that, at a time when official tolerance for minority views is decreasing, our court is not even willing to pause momentarily in order to reflect en banc before joining the rush toward unrestrained majoritarianism.
As the majority opinion recognizes, a necessary condition for upholding a statute challenged on Establishment Clause grounds is that the statute have "a secular legislative purpose." 932 F.2d 765, 773 (quoting Lemon, 403 U.S. at 612, 91 S.Ct. at 2111). The majority contends that the purpose of the statute at issue is "to provide Hawaiians with another holiday." 932 F.2d at 777. This is undeniably a secular purpose; however, it constitutes an incomplete Further, the majority assumes that a statute need only have a secular purpose. In fact, that is not enough. A careful analysis of the Supreme Court's decisions concerning the purpose prong of Lemon demonstrates the majority's error. As Justice O'Connor stated, in the course of casting the crucial fifth vote, the purpose prong "is not satisfied ... by the mere existence of some secular purpose, however dominated by religious purposes." Lynch, 465 U.S. at 690-91, 104 S.Ct. at 1368-69 (O'Connor, J., concurring). If a principal purpose is to further religion, the statute is void.
and highly misleading description of the purpose of the Hawaii statute.
That any secular purpose is insufficient under Lemon is clear from the fact that every statute can be described in such a way that it includes a secular purpose. For example, if a public school were to offer a course in which students were instructed to read the Bible not as literature but as the revealed word of God, it could be said that a purpose of the practice is to foster literacy. As a factual matter this might well be correct. The School Board may have decided that it is important for the students' minds that they read books, and that it is important for their immortal souls that one of the books they read be the Bible. Thus, the Bible-reading has a secular purpose (literacy) as well as a religious purpose. However, the secular purpose is wholly irrelevant to the real issue the court must determine. From a constitutional standpoint, the question is: having decided that students should read books, was there a legitimate secular purpose behind the further decision that the students should read the Bible? Similarly, if a state passed legislation requiring the erection at every other street corner of a pole containing a stop sign with the word "STOP" and a picture of Jesus Christ in the background, there is no doubt that a purpose of the statute would be to regulate the flow of traffic and require vehicles to stop. However, from a constitutional standpoint, the question that would have to be asked is: why the picture of Jesus Christ? Is the purpose of requiring the picture to be on the sign secular? In the case before us, the question is: having decided that Hawaiians should have another holiday, was there a legitimate secular purpose behind the legislature's further decision to select Good Friday as that holiday? The majority in Cammack fails to ask that fundamental question.
To put it another way, what the majority should have recognized is that the purpose of a law selecting a particular day for an additional...
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