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Home My WebLink AboutCOM 0844.002 1998-2000 Stephen K. Yatnashiro 4 Richard Wurdeman Mayor Cluporatum C,."J ll ountV 1-1£'afunii i. OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 . Hilo, Hawaii 96720.4262 (808) 961.8251 - Fax (808) 961-8622 August 3, 2000 OPINION NO. 00-04 Honorable James Arakaki Chairman, Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 Dear Mr. Arakaki: Re: Placement of Buddhist Statue in the Park This letter is in response to your request of July 26, 2000, inquiring about the Constitutional implications which might result from the placement of an "Ojizo-Sams" statue in Liliuokalani Gardens. The threshold question to answer in questions such as is presented here, is to determine whether the object being considered for placement on public property is a religious or a predominantly secular symbol. In Alvarado v. City of San Jose. 94 F3d, 1223 (9" Cir. 1996), it was alleged that the placement of a statue of Quetzalcoatl, the plumed serpent of Aztec mythology, represented a religious symbol. Despite evidence that Quetzalcoatl has significance in certain New Age philosophies, as well as the Mormon religion, the court found that since a reasonable observer would not associate this image with religion, it did not represent an endorsement of religion. Ibid at 1232. A similar finding was made about a "blue devil" in Kunselman v. Western Reserve School District 70 F.3d 931 (6`^ Cir 1995). On the other hand, in Brooks v. City of Oak Ridge F 3d . (6"' Cir 2000), a challenge was made to a "Friendship Bell" which was paid for by private contributions and was to be displayed in a public park, ostensibly as a symbol of friendship between Oak Ridge and Japan. Noting the significance of the use of this particular type of bell in Buddhist ritual, the court found that it was indeed a religious symbol. As we understand it, "Ojizo-Sama" is the affectionate name for Jizo Bosatsu. Jizo Bosatsu, in turn, is the Japanese name for the Indian bodhisahva (buddha to be) Ksitigarbha, known in China as Ti-ts'ang. According to the Encyclopedia Britannica, (www.britannica.com, Comm. t:o. &'it• 00Z Pilo llo. empr Ref. To: lA . I PPP~~"O 4 2000,. Ref. Dute, Hawaii County Council Page 2 August 3, 2000 Ksitigarbha), he is considered to be the savior of the oppressed and the dying. In China, he is considered to be the overlord of hell, but in Japan while he is not given this role, he is considered to have powers of mercy for the departed, and especially for dead children. The Shingon Buddhist International Institute (www.shin og morel refers to him as a "deity," whose powers and protective amulets lend power to those who are weak, are in dangerous places, or in desolate spots. There seems little doubt that the statue in question is a religious object. The Supreme Court in Lemon v. Kurtzman 403 US 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), set forth a three prong test to analyze the effect of the Establishment Clause of the Constitution on governmental practices. The practice must have a clear secular purpose, it must have a primary effect that neither inhibits nor advances religion, and it must not lead to an excessive government entanglement with religion. 1d. at 612-613, 91 S. Ct. at 2111. In Lynch v. Donnelly. 465 US 668, 79 L. Ed. 2d. 604, 104 SCT. 1355 (1984), a challenge was brought against the Christmas display of the City of Pawtucket, Rhode Island. That display included, along with a Santa Claus house and a Christmas tree, a creche. Noting the inclusion of the non-religious components of the display, and further noting that Christmas was a holiday recognized by Congress; the court found that the creche had the secular purpose of communicating the history of the holiday, therefore had a legitimate public purpose, and would be permitted. Five years later, however, the court was asked to consider a creche placed in the stairway of a county courthouse, and a menorah placed outside the county building, along with a Christmas tree and a sign saluting liberty. A divided court characterized the majority holding in Lynch to be "none to clear," but nevertheless struggled with the rationale of Lynch to conclude that whereas the creche would not be acceptable because of its prominent location; the menorah, as it was subordinate to other exhibits, was allowable. County ofAlleghenv v. American Civil Liberties Union. 492 US 473, 106 L Ed, 2d, 472, 109 S. Ct. 3086 (1989). Further defining the always troubling second prong of the Lemon v. Kurtzman test, the primary effects test, the Court ruled that: [W]hen evaluating the effect of government conduct under the Establishment Clause, we must ascertain whether "the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the non-adherents as a disapproval, of their individual religious choices." Accordingly, our present task is to determine whether the display of the creche and the menorah, in their respective "particular physical settings," has the effect of endorsing or disapproving religious beliefs. Alleeheony County, supra, at 597, 109 S. Ct. at 3103. Hawaii County Council Page 3 August 3, 2000 Subsequently, courts have applied this ruling in a variety of contexts. For example, in Separation of Church and State Committee v. City ofEugene. 93 F. 3d. 617 (9th Cir. 1996), it was found that the placement by the City of a 51 foot cross on a publically owned hilltop constituted a governmental endorsement of Christianity, despite the claim that it was nothing more than a war memorial. In lengthy litigation between the ACLU and the City of Jersey City, a holiday display consisting of a menorah and a Christmas tree, was first enjoined. American Civil Liberties Union of New Jersey v. Schunder, 104 Fad 1435 (3rd Cir. 1997), Crt, den. 520 US 1265, 117 S. Ct. 2434, 138 L. Ed 2d. 195 (1997), and then allowed when the City added a Kwanzaa Symbol, a sled, a Frosty the Snowman figure, Santa Claus and a creche were added to the display, American Civil Liberties Union of New Jersey v. Schumer, 168 F. 3d 92 (3rd. Cir. 1999). Similarly, a seasonal display which included reindeer, candy canes, along with a creche was found to meet Federal Constitutional Standards in American Civil Liberties Union v. City of Florissant. 186 F3d 1095 (8th cir. 1999), and the "Freedom Bell" challenged in Brooks v. City of Oak Ridge, supra, was found, although to be troubling, not to convey an endorsement of the Buddhist religion, but rather a message of peace and friendship. The display of "Ojizo-Sama" in Liliuokalani Gardens, would constitute only one of many cultural objects found in that park. Scattered about the park one finds stone lanterns, stylized lion figures, and other objects which provide an oriental ambience to the site. Torii gates which normally are associated with the entrances to Shinto, rather than Buddhist shrines, (www.britannica.com, Shinto), are also found on the property. The questioned statue is located away from the center of the park, in a somewhat secluded sector. The court in the Allegheny County case, supra, 492 US at 620, 109 S. Ct. at 3115, set forth a reasonable observer test to be applied in cases such as this. In considering all the factors set forth above, it is my opinion that no reasonable observer would believe that the principal and primary effect of this statues placement in the park was to advance the Buddhist religion. This conclusion is rendered, however, with one reservation. Should, and I consider this unlikely, this statue become the subject of religious activity, such as the placement of offerings, as occurs in Japan, this delicate balance between it's secular purpose, and it's religious significance would be upset, and it could no longer remain in the park. Sincerely, By CHARD-b. WURDEMAN Corporation Counsel RDW:nas A'Council\ARAKA KI-Oj izo-Sama.wpd