alcohol was found to unconstitutionally impose the religious customs of one segment of the population on the entire state. Id. Finally, the court held that the challenged statute also ran afoul of the entanglement clause by requiring the state to monitor the observance of a religious holiday and by creating political divisions and debate along religious lines. Id. at 22.
Lastly, in Mandel v. Hodges, 54 Cal. App. 3d 596, 127 Cal. Rptr. 244 (1976), the court held unconstitutional a state practice of closing all government offices from 12 noon to 3 p.m. on Good Friday. Like the Griswold court, the court here found that the challenged state practice violated all three prongs of the Lemon test. Distinguishing the Sunday Closing Law cases cited approvingly in Cammack, the court held that the three-hour "holiday" failed the first two prongs on the grounds that Good Friday was a "wholly religious" day. Id. at 611-14. "[The challenged practice] is directly beneficial to religious institutions. Its promulgation by the Governor and its execution throughout the state office complex, amount to an observance by the State itself (in the sense of its recognition, if not its active ceremonial participation), of the 'wholly religious day' which the trial court found Good Friday to be." Id. at 613-14. Finally, the Court cited the "divisive political potential" of the Good Friday holiday as evidence of the excessive entanglement prohibited under the third prong of the Lemon analysis. Id. at 615.
Application of the Lemon Test
Against this backdrop, the court now turns to the constitutionality of Illinois' designation of Good Friday as a legal school holiday under the framework provided in Lemon.
Under the purpose prong of the Lemon test, the court "'asks whether [the] government's actual purpose is to endorse or disapprove of religion'". Edwards v. Aguillard, 482 U.S. 578, 585, 96 L. Ed. 2d 510, 107 S. Ct. 2573 (1987) (quoting Lynch, 465 U.S. at 690) (O'Connor, J., concurring). While state conduct motivated in part by a clearly secular purpose may satisfy the "purpose" test, the First Amendment requires the court to carefully scrutinize mixed motive cases and strike down any statute where the articulated purpose is perceived to be insincere or a sham. Edwards, 482 U.S. at 587; Wallace v. Jaffree, 472 U.S. 38, 57, 86 L. Ed. 2d 29, 105 S. Ct. 2479 (1985). As Justice O'Connor explained, the purpose prong of the Lemon test "is not satisfied . . . by the mere existence of some secular purpose, however dominated by religious purposes." Lynch 465 U.S. at 690-91.
One obvious place to begin when inquiring about a statute's purpose is its legislative history. What did its drafters have to say about the statute's purpose? Indeed, in Wallace, 472 U.S. at 56-58, the Court relied heavily on the legislative record to invalidate an Alabama law authorizing prayer in school. Unfortunately, detailed records of Illinois legislative history prior to the 1970's are scarce, and no such record is available here. Nevertheless, as noted previously, the parties have identified a proclamation from the governor issued shortly after the General Assembly's designation of the Good Friday school holiday which may shed some light on the legislature's motives. At the very least, the proclamation tells us that the governor, for one, viewed the State's recognition of the Good Friday holiday as a general endorsement of the religious spirit surrounding "the Friday just preceding Easter Sunday." (See Def. Ex. H).
As the court observed in Mandel, 54 Cal. App. 3d at 612, potentially improper religious motives can also be inferred from the very nature of Good Friday itself. Unlike Christmas or Thanksgiving which have both secular and religious connotations,
Good Friday remains a wholly religious day. Id. "While non-believers may associate Sundays with recreation, Thanksgiving with eating turkey, and Christmas with sending and receiving gifts and greeting cards, one is hard pressed to come up with any analogous practices associated with Good Friday. Good Friday connotes the Crucifixion - and nothing else." Cammack, 944 F.2d at 471 (Reinhardt, J., dissenting). Clearly, the Illinois legislature was well aware of Good Friday's purely religious nature when it enacted Section 24-2. Connecting the dots, it hardly strains one's imagination to surmise that the Illinois legislature's designation of Good Friday as a legal school holiday was motivated at least in part by a desire to officially endorse the holiday's religious message.
Still, courts are generally reluctant to attribute unconstitutional motives to the states, and in the Establishment Clause context, courts will defer to a state's sincere articulation of a legitimate secular purpose. Edwards, 482 U.S. at 586. Here, defendants assert that the State's designation of Good Friday as a legal school holiday was motivated by a sincere and legitimate desire to accommodate the religious practices and beliefs of a large percentage of its students and ensure that the smooth operation of its schools would not be impaired by their absence. (See Def. Brief at 7-8). The State's decision to close schools, defendants explain, is not "advancement" of religion, but rather "is simply the facilitation of religious liberty and an effort to insure that rather than open schools on a day where absenteeism is likely to be high, staff and students make the most of the finite number of official school days they have." (Def. Reply Brief at 8). As the court explained in Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 335, 97 L. Ed. 2d 273, 107 S. Ct. 2862 (1987), "under the Lemon analysis, it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions. Thus, at least in theory, defendant's proffered explanation of the purpose behind the state's designation of Good Friday as a legal school holiday could satisfy the first prong of the Lemon test.
However, defendants' characterization of Section 24-2's purpose is troubling. As an initial matter, defendants offer scant evidence in support of their broad assertion that if Good Friday were a regular school day, absenteeism would be so great that the schools would be unable to function effectively. In Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 103 L. Ed. 2d 1, 109 S. Ct. 890 (1989), the Court struck down a Texas sales tax exemption for religious periodicals, suggesting that accommodation of religion is generally permissible only where "a concrete need to accommodate" has been demonstrated:
In this case, the State has adduced no evidence that the payment of a sales tax by subscribers to religious periodicals or purchasers of religious books would offend their religious beliefs or inhibit religious activity. The State therefore cannot claim persuasively that its tax exemption is compelled by the Free Exercise Clause in even a single instance, let alone in every case. No concrete need to accommodate religious activity has been shown.
489 U.S. at 18.
Here, the State relies heavily on certain newspaper articles from the 1940's describing in general terms the significance of the Easter weekend holidays to the many thousands of Christians in the Chicago area and the efforts made by area churches to accommodate the anticipated flood of worshipers. (Def. Brief at 7-8). Defendants also cite a recent survey of U.S. church membership as well as some anecdotal evidence gleaned from the parties' depositions which taken together certainly suggest that at least some Christian students and school employees would not attend school if Good Friday were a regular school day. (Def. Brief at 8; Def. Reply at 4-5).
Specifically, defendants cite the results of a survey contained in the 1993 World Almanac which suggest that close to 150 million Americans are members of either Protestant or Roman Catholic churches. (Def. Brief at 8, citing 1993 World Almanac at 718). In terms of deposition testimony, defendants offer the observations of Dr. Philip Price, now the superintendent of Glencoe's elementary school and formerly a superintendent of a school district in Ohio. Commenting on the lack of a state-wide Good Friday holiday in Ohio, Dr. Price testified that "depending on the district, [the lack of a holiday could be a problem. There were individuals, there were parents that found that to be hardship." (Def. Reply at 4; Price Dep. at 32). Defendants also cite the deposition testimony of a Skokie School District 68 school official who noted that at least four employees were absent on "Orthodox Good Friday" (a regular school day) for religious reasons. (Def. Brief at 4, citing Fritts Dep. at 16-17).
To assert, based on this evidence, that Illinois public schools would be unable to function if Good Friday were a regular school day is quite a stretch. As plaintiff points out, the Board of Education is the only state agency that is closed on Good Friday and the vast majority of public institutions of higher education hold classes that day. Conspicuously absent from defendants' case is any indication that any of these institutions or state agencies have suffered as a result of excessive absenteeism by Christian students and employees on Good Friday. While acknowledging that defendants' efforts were hampered by the simple fact that the Good Friday school holiday has been on the books for more than fifty years, the court finds the evidence presented on this point sorely lacking. Moreover, even if a legitimate showing could be made that particular school districts would be unable to function effectively on Good Friday because of excessive absenteeism, the State's asserted purpose would still be suspect. School Code Section 26-1(5)'s grant of school-closing discretion to individual school districts (see discussion infra) obviates any need for the declaration of a state-wide school holiday on Good Friday.
As Justice Souter explained in his concurring opinion in Weisman, 112 S. Ct. at 2677, "whatever else may define the scope of accommodation permissible under the Establishment Clause, one requirement is clear: accommodation must lift a discernible burden on the free exercise of religion." Here, however, it is not at all clear precisely what governmental burden on religion the state is lifting. As defendants point out, Illinois has had a long standing policy of allowing school students and school employees the opportunity to take days off for religious reasons. See 105 ILCS 5/26-1(5) (1992). Indeed, to the State's credit, the Illinois School Code further provides for make-up examinations and assignments for students who miss class for religious reasons, and "that no adverse or prejudicial effects shall result to any child because of his availing himself of the provisions of this section." 105 ILCS 5/26-2b. Thus, in contrast to the typical accommodation case, the State's designation of Good Friday as a legal school holiday does not relieve individuals "from generally applicable rules that interfere with their religious calling." Weisman, 112 S. Ct. at 2676 (citing Bishop, 483 U.S. 327; Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963).
Finally, defendants assert that the legitimate accommodation purposes underlying the Good Friday holiday are best seen when this section is placed in the context of the statute as a whole. When evaluated in this light, the State claims that Section 24-2's designation of Good Friday as a legal school holiday is properly seen as just one of a series of carefully calibrated responses to a range of situations calling for accommodation:
for the religion with the most adherents, Christianity, the public schools are closed state-wide on an important religious holiday . . . for larger minority religions, such as Judaism, the School Code authorizes the local district to close completely on days where a significant number might be absent for religious reasons . . . for smaller minority religions, the School Code permits the student to miss school on religiously significant days without penalty.
(Def. Reply at 8-9). As discussed below, there is a fine line between a "carefully calibrated response" to accommodation and an impermissible attempt by the state to prioritize or rank religious practices and beliefs - a line which this court believes the State has clearly crossed. Finding that Section 24-2's designation of Good Friday was primarily motivated by a desire to endorse the values held sacred by one particular religion at the expense of other "minority" religions, the court holds that the challenged portion of the Illinois School Code fails the first prong of the Lemon test.
The second prong of the Lemon test looks to the "principal or primary effect" of the challenged statute or practice. Lemon, 403 U.S. at 612. The effect of a statute or state practice depends on the message that it communicates. Allegheny, 492 U.S. at 595. As refined by Justice O'Connor's endorsement test, the relevant question becomes: "whether the symbolic union of church and state effected by the challenged government action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices." Ball, 473 U.S. at 390.
In answering this question, this court is guided by two general principles that have long played a central role in our Establishment Clause jurisprudence. First, the inquiry into the effect of governmental action touching on religion must be conducted with special care when the challenged conduct impacts upon children in their formative years. Ball, 473 U.S. at 390. As the court explained in Weisman, 112 S. Ct. at 2658,
What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.
Second, the Establishment Clause prohibits government from conveying a message that religion or a particular religious belief is favored or preferred. Allegheny, 492 U.S. at 593 (citing Jaffree, 472 U.S. at 70. See also Abington School District v. Schempp, 374 U.S. 203, 305, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1963) (Goldberg, J., concurring) ("the fullest realization of true religious liberty requires that government . . . effect no favoritism among sects or between religion and nonreligion"); City of St. Charles, 794 F.2d at 270 ("modern Supreme Court, however, has treated the Establishment Clause as a directive to the courts to strike down all public acts . . . whose primary purpose or predominant effect is to promote one religious group at the expense of others of even promote religion as a whole at the expense of the nonreligious."). With these principles in mind, the court finds that Illinois' designation of Good Friday as a legal school holiday conveys the impermissible message that the government endorses "the individual religious choice" of Christians throughout the state.
As one of only twelve legal school holidays in the state of Illinois, Good Friday undeniably occupies a place of distinction in the official state calendar. One need only briefly consider some of the other designated school holidays - such as Martin Luther King, Jr. Day, Memorial Day, or Independence Day - to surmise that a typical Illinois schoolchild might think that the government considers Good Friday to be worthy of special honor. By the same token, non-Christians and Eastern Orthodox students are reminded that their holy days somehow failed to make the grade.
In Cammack, the court found that certain secular aspects of Good Friday, at least as celebrated in Hawaii, diluted any official endorsement of Christianity that its designation as an official state holiday might be thought to convey. Cammack, 932 F.2d at 778-79. Analogizing to the Sunday Closing Laws upheld in McGowan, the court explained that Hawaiians had long enjoyed the three-day Easter weekend holiday as an additional opportunity to engage in wholly secular pursuits such as shopping or sightseeing. Id; see also Cammack, 673 F. Supp. 1524, 1535-36. Defendants posit the same argument here, stating: "Non-believers can treat the three-day Easter weekend as a totally secular event if they want." (Def. Brief at 18).
This court finds defendants' argument unpersuasive. As noted above, Good Friday is unique among the State's twelve legal school holidays for its wholly religious significance. Unlike Christmas or Thanksgiving, which have numerous non-religious connotations, Good Friday has no identifiable secular components. While non-believers are obviously free to pursue their secular interests on Good Friday, they undoubtedly do so with the knowledge that the State has sanctioned the holiday on account of its special religious significance. These individuals can no more ignore the imprimatur that the State has placed on the Good Friday holiday than could courthouse visitors ignore the significance of the creche at issue in Allegheny. With regard to the McGowan analogy, the dissent in Cammack captured the essential distinction between the Sunday Closing Laws at issue there and the Good Friday holiday challenged here with the following observation:
We need think only of the schoolchild who asks her teacher why she gets Sundays and Good Friday off. The answer must be that the former are days of rest and the latter a commemoration of the death of Jesus Christ.
Cammack, 932 F.2d at 786 (Nelson, J., dissenting). This observation has particular resonance here where plaintiff has alleged that she has had to explain the significance of the Good Friday holiday to her students on numerous occasions. (Pl. Statement of Uncontested Facts at P 9).
Defendants attempt to downplay this clear message of endorsement by pointing out that several school districts north of Chicago have traditionally closed schools in their districts on the Jewish Holy Days of Rosh Hashanah and Yom Kippur, pursuant to 105 ILCS 5/26-1(5). Although this section of the School Code does not specifically designate these days as official holidays, it has generally been interpreted to allow individual school districts to close school whenever a significant number of students might be absent for religious reasons.
Also, as noted previously, for smaller minority religions, the School Code permits the student to miss school on religiously significant days without penalty. ILCS 5/26-1(5). Thus, the State argues that it is incorrect to suggest that it has not afforded adherents of other religions the same deference or respect that it has shown Illinois' Christians. (Def. Reply at 9).
Again, the court disagrees. While Illinois has indeed made efforts to accommodate the religious needs of its non-Christian schoolchildren, it cannot be denied that it has singled out Christianity for special treatment. By elevating Good Friday to legal school holiday status throughout the state, Illinois has sent a clear message to Christians that as adherents of a majority religion, they are specially entitled to state recognition and accommodations that members of minority religions only qualify for upon demand. This is the very message that the Establishment Clause is intended to prohibit. Lynch, 465 U.S. at 687 (O'Connor, J., concurring) ("the Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community."). What defendants describe as "a calibrated response" to varying needs for accommodation, is perhaps more likely perceived by impressionable Illinois schoolchildren and others throughout the state as a loosely structured ranking system for their religious beliefs and practices. Concluding that the State's designation of Good Friday as a legal school holiday conveys the impermissible message that Christianity is a favored religion within the state of Illinois, the Court finds the challenged portion of the School Code unconstitutional under the second prong of the Lemon test as well.
Finally, like the Cammack court, the court here finds that the State's designation of Good Friday as a legal holiday does not lead to excessive government entanglement with religion. Cases that turn on the entanglement prong of the Lemon test typically involve some form of state aid to religious institutions (such as parochial schools) or related schemes requiring state monitoring of religious entities. See, e.g., Aguilar v. Felton, 473 U.S. 402, 87 L. Ed. 2d 290, 105 S. Ct. 3232 (1985); Roemer v. Board of Public Works, 426 U.S. 736, 49 L. Ed. 2d 179, 96 S. Ct. 2337 (1976); Walz v. Tax Com. of New York, 397 U.S. 664, 674-75, 25 L. Ed. 2d 697, 90 S. Ct. 1409 (1970). Here, in contrast, the court is hard pressed to conceive of a scenario under which the mere designation of Good Friday as a legal holiday could be seen to excessively entangle government with religion. At worst, the statute requires school officials to occasionally consult liturgical calendars to determine on which day of the year Good Friday falls. Simply put, entanglement is not an issue.
The issues raised in this case are important and difficult ones. Indeed, throughout the history of this nation, courts have struggled mightily with the slippery dictates of the First Amendment's Religion Clauses. Faced with a fifty year old statute with no legislative history, the court's task here has been especially challenging. Nonetheless, after carefully considering the many thoughtful arguments raised by the litigants in their well written briefs, the court concludes that the challenged portion of the Illinois School Code cannot stand. Finding that Illinois' designation of Good Friday as a legal school holiday was primarily motivated by a desire to endorse the Christian faith and conveys the impermissible message that Christianity is a favored religion within the state of Illinois, the court declares the challenged portion of Section 24-2 of the Illinois School Code to be unconstitutional and enters a permanent injunction prohibiting its enforcement. Plaintiff's motion for summary judgment is granted. Defendants' motion is denied.
Ann Claire Williams, Judge
United States District Court
Dated: MAY 27 1994