Does The "Aloha Spirit" Violate The Establishment Clause?

In an update to my post on the Hawaii Supreme Court’s lawlessness, I pointed out that the Hawaii legislature actually imposed a duty on all state officials to abide by the “Aloha Spirit.”

§ 5-7.5 “Aloha Spirit”. (a) “Aloha Spirit” is the coordination of mind and heart within each person. It brings each person to the self. Each person must think and emote good feelings to others. In the contemplation and presence of the life force, “Aloha“, the following unuhi laulā loa may be used:
“Akahai“, meaning kindness to be expressed with tenderness;
“Lōkahi“, meaning unity, to be expressed with harmony;
“ʻOluʻolu” meaning agreeable, to be expressed with pleasantness;
“Haʻahaʻa“, meaning humility, to be expressed with modesty;
“Ahonui“, meaning patience, to be expressed with perseverance.
These are traits of character that express the charm, warmth and sincerity of Hawaii’s people. It was the working philosophy of native Hawaiians and was presented as a gift to the people of Hawaiʻi. “Aloha” is more than a word of greeting or farewell or a salutation. “Aloha” means mutual regard and affection and extends warmth in caring with no obligation in return. “Aloha” is the essence of relationships in which each person is important to every other person for collective existence. “Aloha” means to hear what is not said, to see what cannot be seen and to know the unknowable.
(b) In exercising their power on behalf of the people and in fulfillment of their responsibilities, obligations and service to the people, the legislature, governor, lieutenant governor, executive officers of each department, the chief justice, associate justices, and judges of the appellate, circuit, and district courts may contemplate and reside with the life force and give consideration to the “Aloha Spirit”. [L 1986, c 202, § 1]

In my post, I joked that Texas should just instruct all of its officials to contemplate and reside with the life force and give consideration to “Christ’s Spirit.” Of course the response is that such a law would violate the Establishment Clause. But why should the Hawaiian statute fare any differently?

This statement has all the hallmarks of a traditional religion. I realize Hawaii used the word “spirit” in a secular sense, but a key attribute of many religions is the notion of a “spirit” that is imbued in people from some higher power.

The statute states that the Aloha Spirit “was presented as a gift to the people of Hawaiʻi.” Presented by whom? That certainly suggests there is some power, apart from the Hawaiian people, who granted this spirit. That sounds quite a bit like many faiths. One might say that Hawaiians were endowed by their creator with an inalienable spirit.

The statute also imposes a near-complete moral code, requiring people to be kind and understanding to others. Sounds a lot like the Golden Rule. Indeed, I applaud the Hawaiian legislature for distilling an entire nondeist religion into a few paragraphs. Rabbi Hillel would be proud that the entire faith could be recited while standing on one foot.

The brain is hardwired to believe in a higher power. Even people who reject formalized religion still seek some sort of spirituality, even in nondeist terms. Perhaps they believe in “Mother Nature” or something else. For Hawaii, the higher power is the “Aloha spirit.”

The obvious question, then, is whether the “Aloha Spirit” violates both the Guarantee Clause and the Establishment Clause? Hawaii may argue that the “Aloha Spirit” is not an actual religion. That is an argument I would gladly receive. I’ve been arguing for some time that the courts need to be more diligent about determining what is, and is not a religion. If the courts afford “most favored” status to religions, and grant exemptions to self-professed believers, the perverse incentive for people to manufacture false faiths becomes too strong.

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