Mandel v. Hodges (54 Cal. App. 3d 596, 1976)

Opinion

RATTIGAN, J.

In her action against appellants for declaratory and injunctive relief, respondent Shelley Mandel took a judgment (“Judgment And Writ Of Mandate”) which enjoins the Governor from ordering the closure of State offices on Good Friday between the hours of noon and 3 p.m., and from granting State employees paid time off during the three-hour period; enjoins the Controller from paying the employees for time taken off from work during the period; and awards respondent’s counsel $25,000 as attorneys’ fees in the action, and her costs, payable by the State. We initially affirmed the judgment, but granted rehearing because of valid questions and arguments raised in appellants’ petition therefor. Some of the arguments attributed to them herein were made in the petition.

I. The Trial Court’s Pertinent-Findings and Conclusions

As mentioned in the judgment (see fn. I, ante), and with respect to the constitutional questions presented, the trial court found upon substantial evidence as follows:

“6. Respondents Department of Public Health and State of California close their offices between the hours of 12:00 noon and 3:00 P.M. on Good Friday without reduction in pay to State employees.

“11. The practice of permitting employees of respondent Department of Public Health and State of California to take off work on the aforesaid hours of Good Friday without reduction in pay was carried out in 1972 and for at least fifteen years prior to the filing of Petitioner’s action pursuant to order of three successive Governors of this State acting in accordance with purportedly discretionary power granted to them. The record reflects that no change of the Governor’s past practice of closing State offices on Good Friday has been undertaken.

“12. An actual controversy exists between Petitioner and Respondents as to her rights under law, Petitioner has sought declaratory relief as to her rights by judgment of this Court, and she has further sought a writ of mandate of this Court directing Respondents to act in accordance with law.

“13. Good Friday is a wholly religious day, of solemn character, and the hours of 12 noon to 3:00 P.M. on said day have a special religious significance which is profoundly rooted in Christian theology, and is an annual event.

“14. Yom Kippur is a wholly religious day of solemn character in which a Jew is called upon to spend time in worship, to fast, and to avoid work, and said holiday is an annual event.

“15. Pursuant to the said annual order of Respondent Governor, State offices are closed during the hours of 12 noon to 3:00 P.M. on Good Friday and employees of Respondent State of California are paid for said period of time; there is no similar practice as to Yom Kippur or other holidays of faiths other than Christian.”

From these findings, none of which is disputed, the trial court drew the following “Conclusions of Law”:

“1. Respondents Department of Public Health and State of California have granted their employees time off from work annually for many years on Good Friday between the hours of 12 noon and 3:00 P.M. without reduction in pay, pursuant to executive order of Respondent Governor acting under the provisions of Government Code Sections-6700 and 18025.

“2. Respondents have failed and refused to grant the same treatment to Petitioner and others similarly situated with regard to Yom Kippur and other religious holidays of religions other than the Christian religion.

“3. The said discretionary power exercised by the Governor in said manner is purportedly pursuant to a delegation of power granted by the State Legislature, but the said Legislature does not itself possess the authority to prefer one religion over another or [to] establish a religion, and therefore cannot confer upon Respondent Governor the power to do so.

“4. Paying of State employees for taking off from work on Good Friday, pursuant to said executive order, violates the First Amendment of the United States Constitution because the State, by reason of the Fourteenth Amendment to said Constitution, is prohibited from making any law respecting the establishment of religion; said action further violates Article I, Section 4 of the California Constitution, in that it constitutes discrimination and preference of one religion over others.

“11. The holiday effect of the days specified in Government Code Section 6700 is not reached, but rather, this decisión relates to the practice of granting State employees time off with pay on Good Friday pursuant to the discretionary power granted to the Governor. There also remains open the question of the effect of the judgment rendered herein on Code of Civil Procedure § 134 relating to the suspension of judicial business on State holidays, including the Good Friday hours of 12 noon to 3:00 P.M.”

II. The Practices Enjoined By The Judgment

Before we address the constitutional questions presented, we find it necessary to define their reach by analyzing the practices which the trial court described in its findings and conclusions and enjoined in the judgment. It is clear from the record, first, that the practice of the Controller in paying State employees for time taken off from work during the three-hour period of Good Friday, which practice is enjoined in paragraph 2 of the judgment (see fn. 1, ante), is ancillary to the execution of the Governor’s order, closing State offices during the period, which is enjoined in paragraph 1. (See ibid.) The validity of the full range of government action challenged by respondent, and enjoined by the judgment upon constitutional grounds, is therefore dependent upon the validity of the Governor’s order.

Although the record frequently refers to the order as a “proclamation” by the Governor, declaring a “holiday” during the Good Friday period, it may not literally read in such ceremonial terms. In recent years, it has been issued by “The Governor’s Office” in the form of a brief letter which was circulated among designated levels of State government, directed only that State offices would be “closed” during the three-hour period, and made no mention of a “holiday.” These facts and their effect are to be assessed in accordance with the complicated—and disorganized—statutory context, relative to “holidays,” in which they have occurred. The pertinent statutes are quoted in the margin.

The provisions of section 6700 designating certain days as “holidays in this state” do not “have any operative effect”; they are “passive in nature—dependent upon other legislative enactments for any legal significance.” (33 Ops.Cal.Atty.Gen. 37, 38 (1959); 57 Ops.Cal.Atty.Gen. 641, 642 (1974).) Section 6703 thus imparts some “legal significance” to two provisions of section 6700 by expressly requiring that all offices of the State are to be closed on one of the designated days (“Admission Day”), but that only some of them shall be closed on another (“Veterans Day”). (See § 6700, subds. (h) and (j).) Section 11020 produces the same effect by indicating that all of them shall be closed on “legal holidays,” a term which may be construed to include both the three-hour period of Good Friday declared to be among the “holidays in this state” in subdivision (l) of section 6700 and any day “appointed by the . . . Governor for a public fast, thanksgiving, or holiday” pursuant to subdivision (n) thereof. (See Vidal v. Backs (1933) 218 Cal. 99, 104-105 [21 P.2d 952, 86 A.L.R. 1134]; Laubisch v. Roberdo (1954) 43 Cal.2d 702, 709-710 [277 P.2d 9]; 40 C.J.S., Holidays, § 1, p. 410.)

However, the statutes designating “holidays in this state” as such (§ 6700), or days upon which State offices shall be “open” (§ 11020) or “closed” (§ 6703), do not specify the days upon which State employees are entitled to time off with pay. These days are listed in section 18025, where the Legislature has (1) designated the “holidays” to which State “employees shall be entitled” and (2) provided in effect that they shall be paid for time taken off from work on those days. (See the last two sentences of section 18025 as quoted in fn. 6, ante.) Of significance in the present case is the fact that section 18025 reiterates the catalog of “holidays in this state” which appears in section 6700, but with the conspicuous exception of “Good Friday from 12 noon until 3 p.m.” which is designated as one of those “holidays” in subdivision (l).

The only link among these disparate provisions is the Governor’s statutory power to declare a given day “appointed ... for a public . . . holiday,” with which the Legislature has vested him in section 6700, subdivision (n), and in section 18025 alike. When he exercises this power as to a particular day, his action—depending upon its terms—may make the day a “holiday in this state” pursuant to section 6700, subdivision (n), or a “holiday” to which State “employees shall be entitled” to paid time off under section 18025, or a “legal holiday” upon which section 11020 permits the closure of State offices, or all three of these things.

In the present case, each of the annual orders of the successive Governors (see the trial courts findings. 11 and 15, quoted ante) produced all three results as to the three-hour period of Good Friday, but in an inverted sequence, as follows: (1) Thé language of each order directed the closure of State offices during the period (see fn. 5 and accompanying text, ante), which made the period a “legal holiday” for that purpose pursuant to section 11020. (2) Although its language went no further in express terms, it necessarily made the period a “holiday in this state” within the meaning of section 6700, subdivision (n), which effect was declaratory only. (3) More significantly, it made the period a “day appointed by the . . . Governor for a public . . . holiday” within the meaning of section 18025 and, therefore, one of the “holidays” upon which State employees were “entitled” to time off from work, with pay, pursuant to the same section.

Our analysis produces these further conclusions which are relevant to the constitutional questions presented: The paid “holiday” given State employees, during the three-hour period of Good Friday, has not resulted from the Legislature’s designation of the period as one of the “holidays in this state” in section 6700, subdivision (l). It has occurred because the Governor has “appointed” the period “for a public . . . holiday” pursuant to his discretionary power, to do this, with which the Legislature has vested him in subdivision (n) of section 6700 and in section 18025. By granting him this power in the specific statutes mentioned, the Legislature has imparted “operative effect” and “legal significance” (which appear when he exercises the power) to the otherwise “passive” provisions of section 6700 which have no “operative effect” in themselves. (33 Ops.Cal.Atty.Gen. 37, supra, at p. 38; 57 Ops.Cal.Atty.Gen. 641, supra, at p. 642.) It thus appears that the governmental action which is primarily subject to respondent’s constitutional challenge is the executive action taken by the Governor, relative to Good Friday and in his discretion, but in the exercise of a power vested in him by legislative enactments.

III. The Purpose Of The Order

It must also be observed that the executive action taken in the Governor’s Good Friday order has not reflected a personal judgment on his part, religious-oriented or otherwise, that the three-hour period affected by it should be a “holiday.” Its patent purpose has been to give practical effect to the Legislature’s designation of the period as one of the “holidays in this state” in section 6700, subdivision (l)—which is proclamatory but without “operative effect” as it appears there—by making it a “holiday” in fact pursuant to the executive power which the Legislature has granted him to do this as to any day or time. (§ 6700, subd. (n);.§ 18025.)

Appellants contend that we may not thus identify the Governor’s purpose in making the annual Good Friday order because, they argue, “[t]his is precisely the kind of activity the California Supreme Court has held to be improper” in County of Los Angeles v. Superior Court (Burroughs) (1975) 13 Cal.3d 721 [119 Cal.Rptr. 631, 532 P.2d 495]. In that case, the court voided a discovery order which would have required local legislators to disclose “portions of discussions in which they participated prior to the enactment of a . .. [local].. . ordinance.” (Id., at p. 723.) It is true, as appellants assert in substance, that the court took this action because the discovery order violated “a longstanding legal principle precluding judicial inquiry into the motivation or mental processes of legislators in enacting legislation” (ibid.), which the court discussed at length. (Id., at p. 726 et seq.) It is also true, as appellants imply, that the same “principle” may preclude “judicial inquiry into the motivation or mental processes” underlying executive action, because it rests in part upon the constitutional doctrine of separation of powers among the three branches of government. (Id., at p. 727 [fn. 5].)

From the decisions cited by the same court as authority for the “principle,” however, it is equally clear that we do not engage in the proscribed “inquiry into the motivation” for executive action when we perceive its purpose to be obvious on the face of the action itself. (See cases cited in County of Los Angeles v. Superior Court, supra, 13 Cal.3d 721 at pp. 726-727.) The Governor’s closure of State offices for the identical three-hour period designated as a “holiday” in section 6700, subdivision (l), cannot be ascribed to coincidence or executive caprice: it unmistakably indicates that his purpose, as we have stated it, was to give practical effect to that statute and as to State employees (who would not otherwise have received a paid “holiday” for the three-hour period because the Legislature has not included it among the “holidays” to which they “shall be entitled” as listed in section 18025).

IV. The Federal Constitutional Question

As stated in its conclusion of law No. 4 (quoted ante) and in the judgment (see fn. 1, ante), one of the grounds upon which the trial court invalidated the Governor’s Good Friday order was that it violated the establishment clause of the First Amendment of the United States Constitution. As the court also indicated in conclusion of law No. 4, the prohibitive effect of the establishment clause is made applicable to the several states by operation of the due process clause of the Fourteenth Amendment. (Cantwell v. Connecticut (1940) 310 U.S. 296, 303-304 [84 L.Ed. 1213, 1217-1218, 60 S.Ct. 900, 128 A.L.R. 1352]; Abington School Dist. v. Schempp (1963) 374 U.S. 203, 215-216 [10 L.Ed.2d 844, 854-855, 83 S.Ct. 1560].)

Although the establishment clause states only that no law shall be made “respecting an establishment of religion” (see fn. 10, ante), it has “a secular reach far more penetrating in the conduct of Government than merely to forbid an ‘established church.’ ” (McCollum v. Board of Education (1948) 333 U.S. 203, 213 [92 L.Ed. 649, 659, 68 S.Ct. 461, 2 A.L.R.2d 1338].) It was “intended to erect ‘a wall of separation between church and State.’ ” (Everson v. Board of Education (1947) 330 U.S. 1, 16 [91 L.Ed. 711, 723, 67 S.Ct. 504, 168 A.L.R. 1392].)

Recognizing that “total separation is not possible in an absolute sense,” and that “[s]ome relationship between government and religious organizations is inevitable” (Lemon v. Kurtzman (1971) 403 U.S. 602, 614 [29 L.Ed.2d 745, 756, 91 S.Ct. 2105]), the United States Supreme Court has formulated a tripartite test which a statute must meet before it may be held in conformity with the establishment clause, as follows: “. . . [T]he now well-defined three-part test that has emerged from our decisions is a product of considerations derived from the full sweep of the Establishment Clause cases. Taken together, these decisions dictate that to pass muster under the Establishment Clause the law in question, first, must reflect a clearly secular legislative purpose, second, must have a primary effect that neither advances nor inhibits religion, and, third, must avoid excessive government entanglement with religion.” (Committee for Public Education v. Nyquist (1973) 413 U.S. 756, 772-773, citations omitted [37 L.Ed.2d 948, 962-963, 93 S.Ct. 2955].)

The high court thus referred to the “three-part test” as one to be applied to a “law,” and the decisions applying it deal for the most part—if not exclusively—with the constitutionality of statutes. As we have seen, however, the establishment clause itself is binding upon the states through the due process clause of the Fourteenth Amendment. (Cantwell v. Connecticut, supra, 310 U.S. 296 at pp. 303-304.) The prohibitive effect of the due process clause reaches, and may preclude, action taken by a state’s executive as well as by the legislative branch of its government. (See, e.g., the Civil Rights Cases (1883) 109 U.S. 3, 11, 17-18 [27 L.Ed. 835, 841-842, 3 S.Ct. 18]; Shelley v. Kraemer (1948) 334 U.S. 1, 14-15, text at fns. 13 and 14 [92 L.Ed. 1161, 1181-1182, 68 S.Ct. 836, 3 A.L.R.2d 441].) Accordingly, the “three-part test” is the constitutional measure of the Governor’s executive action, as such, taken in the form of his Good Friday order. Having applied it, we conclude that the order is unconstitutional because it violates the establishment clause and that the judgment is to be affirmed upon this basis.

(1) The Good Friday order does not “reflect a clearly secular purpose. ”

Addressing the trial court’s findings that “Good Friday is a wholly religious day,” and that “the hours of 12 noon to 3 P.M. on said day have a special significance which is profoundly rooted in Christian theology” (finding No. 13, quoted ante), appellants argue that “although time off on Good Friday might have its origins rooted in Christian history, and although Christian sects may derive some indirect benefit from the fact that state employees have time off on Good Friday, this does not prove that the purpose [of the Governor’s order] is not as it clearly appears: to provide a necessary period of relaxation and rest from the ordinary routine of work for all state employees.”

This argument is explicitly founded upon the so-called “Sunday Closing Law” cases (McGowan v. Maryland (1961) 366 U.S. 420 [6 L.Ed.2d 393, 81 S.Ct. 1101]; Two Guys v. McGinley (1961) 366 U.S. 582 [6 L.Ed.2d 551, 81 S.Ct. 1135]; Gallagher v. Crown Kosher Market (1961) 366 U.S. 617 [6 L.Ed.2d 536, 81 S.Ct. 1122], in which the United States Supreme Court held as follows: Although early enactments prohibiting various forms of labor on Sundays were motivated by religious principles involving the sanctity of the Sabbath, such legislation no longer retains its Christian character. Its purpose today is not to aid religion but to set aside “a uniform day of rest for all citizens,” which is a legitimate secular end because it comports with such valid—and entirely secular—state police-power objectives as the “health, safety, recreation and well-being of our citizens.” Because Sunday Closing Laws serve this end, they do not violate the proscription of the establishment clause. (McGowan v. Maryland, supra, at pp. 431-450 [6 L.Ed.2d at pp. 402-413], Cf. Two Guys v. McGinley, supra, at pp. 592-598 [6 L.Ed.2d at pp. 558-562]; Gallagher v. Crown Kosher Market, supra, at pp. 624-630 [6 L.Ed.2d at pp. 540-544].)

The Sunday Closing Law cases are wholly inapposite to the present facts because they hold in effect that a state law prohibiting work on Sunday serves a secular purpose of historical evolution. In contrast, there is no evidence in the present case that the Christian holy day of Good Friday has become secularized in any degree during the course of its longtime observance by Christian sects. The trial court’s contrary finding that it “is a wholly religious day” (finding No. 13, quoted ante [italics added here]), being supported by substantial evidence (see fn. 3, ante), is controlling in this respect.

For these reasons, the Governor’s order by which the three-hour period of the day is “appointed ... for a public . . . holiday” (§ 6700, subd. (n)) upon which State employees “shall be entitled” to time off from work with pay (§ 18025) cannot plausibly be characterized as serving any “secular” purpose. Indeed, the trial court received in evidence a State personnel manual which expressly declares that “[i]nasmuch as state offices are closed from 12:00 to 3:00 p.m. on Good Friday, employees are given these hours off for worship.” (Italics added.)

Because it wholly lacks any “secular purpose,” the Governor’s order fails the first aspect of the tripartite test which it must meet in order to “pass muster under the Establishment Clause.” (Committee for Public Education v. Nyquist, supra, 413 U.S. 756 at pp. 772-773 [37 L.Ed.2d 948 at pp. 962-963].) This failure alone is conclusive of its unconstitutionality: the three aspects of the test are conjunctive, and government action to which it is applied must satisfy each of them in order to withstand constitutional scrutiny. (Wolman v. Essex (S.D. Ohio 1972) 342 F.Supp. 399, 411 [affd. 409 U.S. 808 (34 L.Ed.2d 69, 93 S.Ct. 61)].) For the reasons next stated in sequence, however, we have concluded that the Governor’s order fails the'other two aspects of the test as well.

(2) The “primary effect” of the order “advances religion. ”

Appellants contend that the ‘‘primary effect” of the order is not one which “advances religion” (Committee for Public Education v. Nyquist, supra, 413 U.S. 756 at p. 773 [37 L.Ed.2d 948 at pp. 962-963]) because any “effect” it has in this direction is remote at worst. In support of the remoteness argument, appellants quote the language of the Nyquist decision in which the court stated that “an indirect and incidental effect beneficial to religious institutions has never been thought a sufficient defect to warrant the invalidation of a state law.” (Id., at p. 775 [37 L.Ed.2d at p. 964] [italics added].)

Although the quoted principle is well settled (see the discussion and cases cited in Committee for Public Education v. Nyquist, supra, 413 U.S. 756 at pp. 776-777 [37 L.Ed.2d 948 at pp. 964-965]), the decisions in which it has been recognized arose from factual contexts in which the “primary effect” of the governmental action involved, and whether it was one which “advances religion,” required searching analysis because the activities reached by it included the performance of secular and religious functions alike and demarcation of the line between them, for purposes of determining whether and where establishment clause proscriptions attached, was a difficult and delicate task. (See, e.g., Committee for Public Education v. Nyquist, supra, at pp. 759, 774-777 [37 L.Ed.2d at pp. 955, 963-965]; cases cited, id., at pp. 772, fns. 29 and 30, 783, fn. 39 [37 L.Ed.2d at pp. 962, 968-969]; Hunt v. McNair (1973) 413 U.S. 734, 742-743 [37 L.Ed.2d 923, 930-931, 93 S.Ct. 2868].)

In the present case, the state action exemplified by the Governor’s Good Friday order requires no such demarcation: as we have seen, it has no “secular purpose” beyond which it may be deemed to have only an “indirect and incidental effect beneficial to religious institutions.” (Committee for Public Education v. Nyquist, supra, 413 U.S. 756 at p. 775 [37 L.Ed.2d 948 at p. 964] [italics added].) To the contrary, the order 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. In the implementation of the order, State employees are given paid time off “for worship.” (See text at fn. 11, ante.)

The fact—stressed by appellants—that the order does not require the employees to “worship” during the three-hour “holiday” is not material. The decisive consideration is that it affords them the opportunity, and actually encourages them, to “worship” if they are so inclined. Under the circumstances, the order is unconstitutional because its “primary effect” is one which “advances religion” within the meaning of the critical test. (Committee for Public Education v. Nyquist, supra, 413 U.S. 756 at p. 773 [37 L.Ed.2d 948 at pp. 962-963].)

(3) The order constitutes an “excessive entanglement with religion.”

Appellants argue that the Governor’s order does not reflect an “excessive entanglement with religion,” within the meaning of the Nyquist test, because it does not require the State to engage in such activities of inspection, evaluation, and “surveillance” as, the United States Supreme Court has determined to constitute “excessive entanglement” which is impermissible under the establishment clause. (E.g., Lemon v. Kurtzman, supra, 403 U.S. 602 at pp. 616, 619-621 [29 L.Ed.2d 745 at pp. 759-761], See, and compare, Tilton v. Richardson (1971) 403 U.S. 672, 687 [29 L.Ed.2d 790, 804, 91 S.Ct. 2091]; Hunt v. McNair, supra, 413 U.S. 734 at pp. 745-749 [37 L.Ed.2d 923 at pp. 932-935].) The decisions in which the court has found this situation—which it has broadly described as “administrative entanglement” (Committee for Public Education v. Nyquist, supra, 413 U.S. 756 at p. 780 [37 L.Ed.2d 948 at p. 967])—have involved state programs for publicly funded financial assistance to educational institutions which performed both secular and religious functions, and where ongoing state “surveillance” of the programs’ administration was accordingly required “in order to ensure that state aid supports only secular education.” (Lemon v. Kurtzman, supra, at p. 616 [29 L.Ed.2d at pp. 757-758].)

A comparable situation is not presented here; it may be acknowledged that the Governor’s Good Friday order exacts no such monitoring activities by the State as would amount to the “administrative entanglement” just described. But the prospect of excessive entanglement, for constitutional purposes, is not limited to situations where such activities may be required. The high court has expressly stated that judicial scrutiny for the prospect must comprehend “all the circumstances of a particular relationship” and is not to be governed by “precise rules and forms.” (Lemon v. Kurtzman, supra, 403 U.S. 602 at p. 614 [29 L.Ed.2d 745 at pp. 756-757].) “Excessive entanglement” may thus occur where so-called “administrative entanglement” does not.

The Governor’s order obviously reaches the thousands of State employees who are directly involved by reason of their being given time off from work during the designated three-hour period of Good Friday. It reasonably may—and realistically must—be presumed to reach the countless members of the public who are denied access to State offices by the closure it causes, and by the people of California whose public business is perceptibly interrupted, during the period. There is no reason for these results other than the State’s observance of a “wholly religious day” as a holiday, which is the unmistakable effect of the Governor’s order as discussed ante. Because the “wholly religious” character of the day is exclusively Christian in origin and practice, its observance by the State in our religiously pluralistic society offers a “divisive political potential” which may in itself constitute an even “broader base of entanglement” for constitutional purposes. (Lemon v. Kurtzman, supra, 403 U.S. 602 at pp. 622-623 [29 L.Ed.2d 745 at pp. 761-762].) Under all the circumstances, we perceive in the Governor’s order an “excessive government entanglement with religion” whereby it fails the third aspect of the test to which the establishment clause subjects it. (Committee for Public Education v. Nyquist, supra, 413 U.S. 756 at p. 773 [37 L.Ed.2d 948 at pp. 962-9.63].)

V. The State Constitutional Question

Although appellants have made no point of it, we cannot ignore the trial court’s separately stated conclusion that the annual Good Friday order was invalid upon the distinct ground that it violated article I, section 4, of the California Constitution. (See its conclusion of law No. 4, quoted ante.) The history and structure of our national federalist system has both permitted and required the long-standing judicial construction of the California Constitution as a document whose “vitality” and “force” are independent of its federal counterpart. (People v. Brisendine (1975) 13 Cal.3d 528, 548-550 [119 Cal.Rptr. 315, 531 P.2d 1099], See also Falk, The State Constitution: A More Than “Adequate” Nonfederal Ground (1973) 61 Cal.L.Rev. 273, particularly at p. 277 [“The California Supreme Court has long regarded the Declaration of Rights of the California Constitution as a charter of independent significance” (fn. omitted)].) It has recently been amended to say this in express terms: section 24 of article I, declaring that “Rights guaranteed by this Constitution are not dependent upon those guaranteed by the United States Constitution,” was adopted by the people in 1974 as a “reaffirmation of existing law.” (People v. Brisendine, supra, at p. 551.)

The courts of California are the exclusive and final arbiters of the “rights” guaranteed by its Constitution, so long as the interpretive results they reach extend, to the citizens within their jurisdiction, equal or greater protection to those extended by the United States Supreme Court under textually parallel provisions of the federal Bill of Rights. (People v. Brisendine, supra, 13 Cal.3d 528 at pp. 551-552 [discussing and quoting State v. Kaluna (1974) 55 Hawaii 361 [520 P.2d 51].) For these reasons, it is apparent that the trial court’s invalidation of the Good Friday order under article I, section 4, of the California Constitution warrants examination independently of that to which we have subjected the order under the establishment clause of the First Amendment.

When the present judgment was entered, section 4 of article I provided in pertinent part: “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be guaranteed in this State . . . .” As re-adopted by vote of the people on November 5, 1974 (in conjunction with its repeal as formerly worded), and as now pertinent, it provides: “Free exercise and enjoyment of religion without discrimination or preference are guaranteed. . .. The Legislature shall make no law respecting an establishment of religion. . . .” The identity of the language of its newly adopted “establishment clause” with that of the federal establishment clause (see fn. 10, ante) suggests that state action reached by both should be tested by the courts of California according to the same standards which the United States Supreme Court employs in applying the federal language. (See Gabrielli v. Knickerbocker (1938) 12 Cal.2d 85, 89 [82 P.2d 391]; Cohen v. Superior Court (1959) 173 Cal.App.2d 61, 67 [343 P.2d 286].)

However, the “[f]ree exercise and enjoyment” clause of section 4 is not new: except for the editorial—and nonsubstantive—changes made when it was re-adopted by the people in 1974, it has appeared in our Constitution since 1849. (Const, of 1849, art. I, § 4; Const, of 1879, art. I, § 4 [as adopted May 7, 1879, and as re-adopted Nov. 5, 1974].) Section 28 (formerly § 22) of article I requires that the clause be read as both “mandatory and prohibitory.” By its express terms, what it mandates is the perpetual guaranty of the “[f]ree exercise and enjoyment” of religion; what it prohibits is “discrimination” against, “or preference” in favor of, one religion as opposed to another.

The Governor’s Good Friday order has produced both of the results which the clause prohibits. Because it has appointed an exclusively Christian holy day as a paid “holiday” for all pertinent purposes affecting state offices and employees, it amounts to “discrimination” against all n