As some of you know, my First Amendment career started with the issue of to what extent public schools can acknowledge and/or celebrate religious holidays.  The issue I was dealing with was Halloween, and I usually get the most questions about Christmas, but you would be surprised how many lawsuits have been filed challenging a public entity’s  acknowledgment of the Good Friday/Easter holiday weekend.  So given the date, I thought I would republish the portion of my religious holidays chapter that deals with Good Friday and Easter. Enjoy!

From The Oldest Rule: A Primer on Student First Amendment Issues for Attorneys and School Officials (Xlibris Dec. 5, 2014) – Chapter 20

Good Friday/Easter

The courts in Skoros, Clever and Florey all dealt with the holiday of Christmas, which, while undoubtedly a holiday with a strong religious origin, has also developed into an equally powerful secular holiday.  At the very least, the courts are certainly no stranger to the Christmas debate–as evidenced by the quote beginning this chapter.  A more troublesome holiday is the Good Friday/Easter weekend.^[1]  Many school districts have traditionally given their students Good Friday off, and yet for decades none had been challenged in the courts for doing so.

However, in the mid-1990’s both Illinois and Maryland were sued by teachers over statutes dating from the 1940’s that mandated a statewide public school holiday on Good Friday; the teachers argued that the statutes violated the Establishment Clause by “establishing” the religion of Christianity.  Both Illinois and Maryland advanced many of the same arguments to support the Good Friday holiday, and the courts had before them roughly the same body of Establishment Clause caselaw with which to analyze the issue.  And yet, in Metzl v. Leininger,^[2] the Seventh Circuit declared the Illinois statute unconstitutional, while in Koenick v. Felton,^[3] the Fourth Circuit upheld the constitutionality of the Maryland statute.  What lessons can we learn from these two decisions–other than in April it is better to be a student in Maryland than in Illinois?  For what reasons can a school give its students Good Friday off and survive constitutional challenge?

• to recognize Good Friday as a holiday

The simplest reason to give students Good Friday off would be because Good Friday is, after all, a holiday.  However, it is highly unlikely that any court would accept recognizing Good Friday alone as a constitutionally-acceptable reason for giving students a holiday on Good Friday.  Giving students secular holidays off simply because they are “holidays” is of course permitted.  As discussed above, the courts have generally agreed that Christmas has become secularized to the point that it is a constitutionally-permissible holiday in and of itself — no further justification is necessary.

There is a growing trend among courts in very recent years of recognizing Easter as a secularized holiday.  Easter egg hunts have become an accepted secular ritual, and the Metzl court described a Chicago radio station’s offer in 1995 to allow pet owners to have their pets photographed with the Easter bunny on Easter Sunday for $5.00.^[4]  Comparing Easter to Christmas, Koenick called Easter “a highly secularized holiday.”^[5]

School districts do not need to worry overly much about Easter; Easter always falls on a Sunday, after all.  Regardless of Easter’s status, however, virtually every court to consider Good Friday has noted that it has no secular rituals, and that “it is a day of solemn religious observance, and nothing else, for believing Christians, and no one else.”^[6]  Only one court has ruled otherwise; in considering a statute that gave Hawaiian state officials a holiday on Good Friday, the Ninth Circuit accepted Hawaii’s argument that Good Friday had become seen as the first day of a three-day secular weekend devoted to shopping and recreational activities.^[7]  Even the Ninth Circuit was not unanimous in this view; as Judge Nelson noted in his dissent, “[t]he holly and the ivy, jingling bells, red-nosed reindeer, and frosty snowmen this is not.”^[8]

The Seventh Circuit rejected the “spring holiday” rationale for a Good Friday holiday in Metzl, noting that “Illinois is not Hawaii.  No one goes water skiing on Lake Michigan in mid-April.”^[9]

Because Good Friday is generally seen as a religious holiday, simply giving students the day off because it is a holiday would probably violate the first prong of the Lemon test: there would be no secular purpose for the holiday.  The Metzl court could find no legislative history to examine to determine the purpose behind the Illinois statute, but the evidence did show a proclamation that had been made by the Governor of Illinois in 1942, when Good Friday was originally recognized as a public school holiday.  The Governor, at least, had been fairly sure why the new holiday had been declared:

NOW THEREFORE , I, DWIGHT H. Green, Governor of the State of Illinois, by this official proclamation, do hereby direct attention to this significant day, Good Friday, which falls this year on April 3, and commend the secret rites and ceremonies of the occasion to the thoughtful consideration of churchgoers and believers throughout our State.^[10]

Having little else to go on, the court was willing to attribute the governor’s statement in part to the legislature.

The Koenick court rejected the plaintiff’s effort to debate whether Good Friday was as secularized as Easter and Christmas, on the grounds that the Maryland statute did not actually mention Good Friday; instead, it gave students the Friday before Easter and the Monday after Easter off.  The court repeatedly emphasized that the Monday following Easter has no religious significance to anyone.  Because Maryland was giving its students two days off (one of which was non-religious), the court found that Maryland had a genuine secular purpose in passing the statute (to provide a four-day spring weekend) as opposed to the evidence that Illinois had passed its law to “commemorate the crucifixion of Jesus Christ.”

• to accommodate the religious practices of Christians

Illinois argued that the Good Friday holiday was necessary to accommodate its large number of Christian students and teachers.  This argument was significantly weakened, however, by another portion of the Illinois holiday statute that allowed any student to miss school for religious reasons without penalty.  This sort of statutory allowance is common in many states, and is arguably required by the Free Exercise Clause.  The Seventh Circuit reasoned that if any student was permitted to take his or her religious holidays off without penalty, mandating that all students (not just Christians) take Good Friday off accorded Christianity special recognition that went far beyond what was reasonably needed to accommodate its adherents.^[11]

Illinois’s accommodation argument regarding its Good Friday holiday was actually more complex than a simple desire to accommodate Christianity.  The state argued that the Good Friday holiday had to be looked at in context of its entire statute dealing with holidays in the school system.  In addition to allowing any individual student to miss school for religious reasons without suffering any penalty, the statute also allowed individual school districts to close their schools if a significant number of their students would be absent for religious reasons.  This, said the state, was accommodation at its finest: for the religion with the most adherents–Christianity–the public schools were closed state-wide.  For the larger minority religions--i.e. Judaism–school districts could choose whether they wished to close their schools.  And for smaller minority religions, individual students could be absent and suffer no consequences.  The evidence before the court showed that this system actually worked in practice, and that several districts north of Chicago did indeed close on the Jewish holidays of Rosh Hashanah and Yom Kippur.^[12]

The district court specifically rejected this argument on the grounds that it violated both the effect and purpose prongs of the Lemon test.  Although it approved of Illinois’ efforts to accommodate religion, in the district court’s view Illinois was doing so in a way that singled out Christianity for special recognition.  In effect, Illinois had created a hierarchy of religions, with Christianity at the top.  Although all students could have their religious holidays off, Christians got theirs automatically, and all others had to ask.  The court felt that the effect of this policy was to unavoidably advance Christianity, and that the policy was therefore unconstitutional.^[13]

• to prevent the waste that would be caused by the excessive absenteeism that would occur should school be held on Good Friday

This was the primary argument advanced by both Illinois and Maryland to justify their Good Friday holidays.  In essence, both states argued that if school was held on Good Friday, large numbers of teachers and students would be absent.  This would require large expenditures for substitute teachers, who would also be scarce due to the holiday.  The teachers who were left would hesitate to teach anything of real substance to the few students remaining, because they would simply have to teach it again to the absent students to allow them to catch up.  In short, the entire day would be a waste of scare resources, and therefore the time, money and effort saved by taking Good Friday off justified the holiday.

Koenick accepted this argument and upheld the Maryland statute.  Metzl acknowledged that such a purpose would be a permissible secular purpose, but rejected the argument as being unsupported by the evidence before the Court.  The problem, as both courts admitted, was that both statutes were over 50 years old, and nobody really knew what attendance would be like if school actually was held on Good Friday.  The real question, then, was who had the burden of proving–or disproving–the state’s argument?

In Metzl, both the District Court and the Seventh Circuit placed the burden on the state.  The Seventh Circuit stated that “economy in litigation” dictated that the state bear the burden, because i) the burden of producing evidence belonged on the party who, in the absence of evidence, would have no case; and ii) the burden of producing evidence belonged on the party best able to produce the evidence at the lowest cost.^[14]  Absent any real evidence of a potential absenteeism problem, the Court was very skeptical about the state’s gloomy predictions regarding what would happen if school was held on Good Friday.  Noting that “it is a matter of common knowledge” that many Christians do not attend Good Friday services, and that such services are frequently offered during non-school hours, the Court concluded that the fact that Illinois had revoked Good Friday as a holiday for state employees in 1989 indicated that nonobservance of Good Friday was the rule rather than the exception.^[15]  The fact that neither state government offices nor public colleges–which were also in session on Good Friday–suffered from absenteeism problems cast serious doubt on the state’s arguments.^[16]

Judge Manion, writing in dissent, took the majority to task for making the state prove its argument, where normally the burden would rest on the plaintiff to prove her case.  In Judge Manion’s view, once the state produced its justification for the Good Friday holiday, the burden returned to the plaintiff to prove her claim that a Good Friday holiday was not necessary to prevent absenteeism.  Like Judge Manion, the Koenick court was also willing to give much greater deference to what it felt was a reasonable prediction of absenteeism on the part of the State.  Both Judge Manion and the Koenick court looked at statistics that compared the number of Christians adherents to the adherents of other religions and reasoned that the sheer number of Christians meant that Christian holidays were likely to create absenteeism problems that could not be matched by non-Christian religious holidays.  Maryland was actually able to produce evidence that disruption and absences increased on Jewish holidays, so the Koenick court was willing to assume that such disruptions would be worse around Easter, considering that Maryland’s Christian population was ten times its Jewish population.  It also helped Maryland’s argument that it excluded the Jewish holidays of Yom Kippur and Rosh Hashanah from the school calendar if they fell on a weekday, for the same reasons.^[17]

In the absence of any real evidence of potential absenteeism, this argument will probably not be too terribly successful in future litigation.  There are simply too many strikes against it.  None of the major Christian sects require their adherents to take a full day of rest on Good Friday, and Good Friday services are usually offered early in the morning and in the evening after school hours.  It does not appear that government bodies that are in session on Good Friday have absenteeism problems.  The Metzl court also questioned the statewide approach to this issue.  Reasoning that church attendance on Good Friday was likely to vary throughout the state, it suggested that allowing school districts to decide on a local basis whether attendance required a holiday for budgetary/waste reasons was a more reasonable approach than dictating that all school districts throughout the state take the day off.^[18]

• The school desires to give its students and teachers a three-day weekend during March/April, and Good Friday is the logical day to take off because at least some people would be taking it off anyway

Interesting enough, Illinois did not make any serious effort to argue that the purpose of the Good Friday holiday was to give students a three-day weekend in the spring, and that Good Friday was chosen simply because it was likely that some students and teachers would already be taking it off.  This is surprising, because the only other federal Court of Appeals to uphold a Good Friday holiday for government employees did so on the basis of this justification.  In Cammack v. Waihee,^[19] the Ninth Circuit upheld a Hawaiian statute that gave its employees the Friday before Easter off.  The 1941 legislature that passed the law had made it clear that its purpose was to provide another paid holiday for its employees.  It seemed that there was a gap between Lincoln’s Birthday in February and Memorial Day in May, and when the legislature looked at the calendar, Good Friday fell right in the middle of that gap.  According to the court, the governor’s reasons for vetoing a similar act in an earlier bill was proof of that secular reason:  he claimed that “the holidays were getting a bit thick about that time of year.”^[20]  The fact that Good Friday was undoubtedly a Christian holiday and that the legislature was candid in admitting that putting the proposed holiday on Good Friday was convenient because employees were already taking the day off did not bother the court.  It relied on Justice Douglas’ comment in Zorach v. Clauson^[21] that a legitimate, secular act is not made unconstitutional simply because it accommodates the religious practices of some citizens.

It appears that Illinois made a half-hearted attempt to argue such a rationale for its statute.^[22]  The court rejected the argument for lack of any evidence, but it noted that had the state forthrightly made such a pronouncement regarding Good Friday, “we might have a different case.”^[23]  In fact, the Court all but invited Illinois to pass a new statute with the official purpose of adopting a “spring weekend.”^[24]

Maryland apparently did make such an argument.  Maryland’s argument was aided by the fact that the Maryland statute did not mention Good Friday by name; instead, it gave students both the Friday before and the Monday after Easter off.  The Koenick court noted Metzl’s comment that Illinois’ case would have been much different had it advanced evidence of a “three-day spring weekend” purpose, and noted that this was the “most significant” difference between Maryland’s and Illinois’ statutes.^[25] The Koenick court therefore ruled that Maryland’s statute was constitutional.

Does it matter that Maryland may have originally passed its 130 year-old Good Friday statute for religious purposes?  Not necessarily, so long as the purpose of the holiday has evolved into a secular purpose.  In 1961, the Supreme Court decided McGowan v. Maryland,^[26] a challenge to Sunday Closing Laws on the basis that Sunday is predominately a religious day of worship for Christians.  The problem faced by the Supreme Court was the origin of the Closing Laws:  “There is no dispute that the original laws which dealt with Sunday labor were motivated by religious forces.”^[27]  The Court went on, however, to trace the evolution of the Sunday Closing Laws.  What had once been a religious practice, according to Chief Justice Warren, had evolved into a secular day of rest.  The most telling piece of evidence of this secular shift was that the chief supporters of the Closing Laws were now the unions, not the churches.^[28]  The fact that a practice had once been motivated by religious reasons would not condemn it if the court could find newer, secular reasons for continuing it.  In other words:

To say that the States cannot prescribe Sunday as a day of rest for these [secular] purposes solely because centuries ago such laws had their genesis in religion would give a constitutional interpretation of hostility to the public welfare rather than one of mere separation of church and State.^[29]

The Koenick court also held that under Lemon, the Easter statute did not have the primary effect of advancing or inhibiting religion, because it gave everyone the weekend off and did not require or even encourage students to attend religious services on Good Friday.  The court also determined that there was not excessive entanglement, holding that consulting a calendar to determine the date of Easter was not “excessive.”  To be on the safe side, the court then applied the hodge podge of “tests” derived from recent Supreme Court decisions, finding i) that under Justice O’Connor’s test from County of Allegheny, the holiday did not grant an added benefit to any one religion that it did not give everyone else; ii) that under Lee v. Weisman it did not coerce anyone to participate in any religious practices; and iii) that under Kiryas Joel, it satisfied the neutrality test.

Can a principled distinction be drawn between Metzl and Koenick?  Although differences between the language and the history of the two statutes exist, they are more cosmetic than real.  The fact that the Maryland statute did not mention “Good Friday” by name made it easier for the court to find a secular purpose, but this does not hide the fact that Maryland’s “four-day spring weekend” is specifically defined by its relationship to Easter, rather than by a specific weekend in March or April.  The obvious effect of the statute, bottom line, is to give students Good Friday off.

^[1]See Cammack v. Waihee, 932 F.2d 765, 782 (9th Cir. 1991) (J. Nelson, dissenting) (comparing Good Friday to Christmas: “The holly and the ivy, jingling bells, red-nosed reindeer, and frosty snowmen this is not.”).

^[2]Metzl v. Leininger, 850 F. Supp. 740 (N.D. Ill. 1994), aff’d, 57 F.3d 618 (7th Cir. 1995).

^[3]Koenick v. Felton, 973 F. Supp. 522 (D. Md. 1997), aff’d, 190 F.3d 259 (4^th Cir. 1999).

^[4]57 F.3d at 620.

^[5]Koenick, 973 F. Supp. at 525.

^[6]Metzl, 57 F.3d at 620.

^[7]Cammack v. Waihee, 932 F.2d 765, 775-79 (9th Cir. 1991).

^[8]Id. at 782 (J. Nelson, dissenting).

^[9] Metzl, 57 F.3d at 622.

^[10]Id.

^[11]Metzl, 57 F.3d at 620-21.

^[12]The court reserved the question of whether the practice of allowing individual districts to choose whether to close on religious holidays also violated the Constitution.  See id. at 749 n.12.

^[13]850 F. Supp. at 747-49.  See also 57 F.3d at 621 (“The state law closing all public schools on Good Friday makes the burden of religious observance lighter on Christians than on the votaries of other religions.”).

^[14]57 F.3d at 622.

^[15]57 F.3d at 621-22.

^[16]Id.  See also 850 F. Supp. at 747.

^[17]Koenick, 973 F. Supp. at 526.

^[18]57 F.3d at 623-24.

^[19]Cammack v. Waihee, 932 F.2d 765 (9th Cir. 1991).

^[20]Cammack, 932 F.2d at 775.

^[21]Zorach v. Clauson, 343 U.S. 306, 313-14, 72 S. Ct. 679, 684 (1952).

^[22]See 57 F.3d at 623 (“The argument is no more than hinted at in the state’s brief (“students, parents and teachers have grown accustom [sic] to this day as a three-day weekend in the spring.”).)”

^[23]57 F.3d at 623.

^[24]57 F.3d at 624.

^[25]Koenick, 973 F. Supp. at 529.

^[26]366 U.S. 420, 81 S. Ct. 1101 (1961).

^[27]Id. at 1109.

^[28]Id. at 1110.

^[29]Id. at 1115.