Monday, January 10, 2000

Challenge to Christmas holiday appealed


Hyde Park man still insists it's a violation

BY BEN L. KAUFMAN
The Cincinnati Enquirer

        Lawyer Richard Ganulin has filed notice of appeal, attacking dismissal of his challenge to Christmas as a national legal public holiday.

        He said the trial judge's decision “undermines obedience to the rule of law and instead allows the public power of the government of the United States to promote Christianity in an unmistakable and inescapable way.”

        The Hyde Park resident said the public holiday celebrates undeniably sectarian events, the birth of Jesus, whom Christians believe to be the Messiah, and the arrival of Santa.

        That's fine for believers, he said, but it shouldn't be a national legal public holiday created by Congress.

        As such, Mr. Ganulin said, Christmas “communicates a powerful message of Christian identity to the citizens of the United States” and violates church-state separation found in the Establishment Clause of the First Amendment.

        He said it also violates constitutional guarantees of equal protection and freedom of association.

        Last month, U.S. District Judge Susan J. Dlott rejected his claims, saying Christmas has become so secular that the government does not violate the Constitution by declaring it a federal legal holiday.

        She said Congress is “merely acknowledging the secular cultural aspects of Christmas by declaring Christmas to be a legal public holiday. ... A government practice need not be exclusively secular to survive. ”

        However, it was the poem introducing the decision that drew more international attention and White House critical approval. In part, she wrote:

        The court will uphold

        seemingly contradictory causes

        Decreeing “The Establishment” and “Santa”

        Both worthwhile Claus(es).

        Judge Dlott applied a three-prong test to determine whether Dec. 25 as a national public Christmas holiday violates church-state separation. To win court approval, she said, a statute must:

        • Have a secular purpose.

        • Neither advance nor inhibit religion as its principal or primary effect.

        • Not excessively entangle government with religion.

        Having found sufficient secular purpose, Judge Dlott said no reasonable person would see the federal holiday as an endorsement of Christianity “in particular or religion in gener al.”

        Giving federal employees the day off is “no more than recognizing the cultural significance of the holiday,” she continued. That it accommodates Christians who want to celebrate Jesus' birth “does not mean the holiday has an impermissible religious effect.”

        She also denied the federal holiday violates anyone's right to equal protection, saying it did not impinge on Mr. Ganulin's freedom of association and there was a “rational, secular reason for the establishment of the holiday.”

        Notice of appeal always is filed with the trial judge. After that, a three-judge appellate panel of the U.S. Court of Appeals for the 6th Circuit in Cincinnati will decide his case.

        Coming months will be taken up with the filing of briefs and replies. Then it will be up to the 6th Circuit whether to decide the case on briefs or to hear oral arguments. It could be 2001 before a decision is handed down.

        Mr. Ganulin has indicated he will ask the U.S. Supreme Court to intervene if the 6th Circuit rules against him.

        Most recently, the 6th Circuit said Good Friday — commemorating Jesus' crucifixion — has become so secular that closing Kenton County offices and courts does not violate the First Amendment. Similarly, scheduling that renamed annual “Spring Holiday” to coincide with Good Friday does not violate church-state separation.

        “Holidays are established for the convenience of citizens,” Judge Danny J. Boggs wrote for the divided court, “and that convenience often is caused by individual motivations that may be a mix of secular and religious.”

        Judge Boggs said Kenton County officials “have done all they can to prevent any impression that they are endorsing religion in closing their building and offices for a Spring Holiday on the Friday before Easter.”

        How clear that precedent is remains a question: Judges Harry W. Wellford and Karen Nelson Moore wrote separate opinions.

        Judge Wellford agreed with Judge Boggs; Judge Moore sided with church-state separatists who said Good Friday closings are an unconstitutional estab lishment of the Christian faith.

        The case reached the 6th Circuit after U.S. District Judge William O. Bertelsman allowed Good Friday/Spring Holiday closings.

        Judge Boggs said Kenton County offered credible evidence that Good Friday has become a day with secular effects in Northern Kentucky: “Many school children are on Spring vacation the following week and many Kentucky families start their vacations early, on Friday.”'

        Judge Boggs also concluded no reasonable observer would see the closing as a forbidden government endorsement of religion.

        Judge Wellford said the now-banned Christian Good Friday signs in county offices did not “permanently taint the setting of a spring holiday on the weekend of Easter.”

        Dissenting Judge Moore called Good Friday “a purely religious holiday” and said the county showed “no legitimate secular purpose” and closings violated the First Amendment.

        Mr. Ganulin said that decision support his arguments rather than those of the government and federal employees opposing him.

        Kenton County changed Good Friday closing to Spring Holiday; Congress left the name of its public federal Christmas holiday untouched.

        There is no analogous holiday to Christmas but Judge Boggs likened Good Friday closing to the public closings before Derby Day. The rush to start vacations identified with Good Friday does not characterize Christmas.

       



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