Wednesday, February 23, 2000

Lawyer appeals Christmas decision


Brief challenges ruling on holiday

BY BEN L. KAUFMAN
The Cincinnati Enquirer

        As Richard Ganulin sees it, Christmas as a national, legal public holiday unfairly stigmatizes non-Christians and unconstitutionally favors and subsidizes Christians.

        “All Christian children in this nation grow up learning that they are preferred by their government,” he says in a brief filed Tuesday with the U.S. Court of Appeals for the 6th Circuit in Cincinnati. “All non-Christian children grow up learning that they are not.”

        The Hyde Park lawyer says that sectarian preference is “a badge of inferiority placed by the government upon non-Christians” and it continues to energize his attack on the federal holiday.

        It's a battle he lost last year when U.S. District Judge Susan J. Dlott cited law and tradition and granted summary judgment to the government.

        Mr. Ganulin's appellate brief says Judge Dlott's decision should be overturned because she was wrong on the facts and wrong on the law.

        Mr. Ganulin has no quarrel with anyone celebrating Christmas as a personal religious holiday.

        His quarrel is with Congress, saying the Dec. 25 federal holiday favors and subsidizes one faith over all others, ignores church-state separation and violates constitutional guarantees of freedom of association and equal protection.

        Further, Mr. Ganulin says, the federal holiday “is a form of imposed assimilation on non-Christians” that makes it more difficult for him to “live in a way consistent with his beliefs and practices and to teach his beliefs and practices to his children.”

        He said it also “makes it less likely his children will understand and respect his beliefs and practices. ”

        When government lawyers sought pretrial summary judgment, Judge Dlott was required to assume Mr. Ganulin's version of the facts was true, he says. Only if he offered no facts that would prove his claims could she grant the government's request.

        She should have struck down the legislation creating the holiday or let it go to trial, he says.

        Instead, Judge Dlott misconstrued the fact that Christmas is a sectarian preference, Mr. Ganulin says, and her summary judgment was reversible error.

        He says a second reversible error was her failure to recognize a long line of First Amendment cases that subject such church-state controversies to the strictest constitutional scrutiny.

        That requires a compelling government interest and a narrowly tailored solution before entangling itself with religion.

        Instead, Judge Dlott said the federal Christmas holiday did not promote sectarian preference and 6th Circuit precedents indicated that she need not apply strict scrutiny.

        Mr. Ganulin says Judge Dlott's errors reflected “three logically contradictory rulings:”

        • Christmas is not a truly Christian celebration.

        • Even if it is a Christian celebration, its establishment as a national legal public holiday does not prefer Christianity over other beliefs.

        • Even if Christmas Day is a Christian celebration and its establishment as a national legal public holiday prefers Christianity, Congress is constitutionally authorized to accommodate Christianity.

        In her decision, Judge Dlott embraced Assistant U.S. Attorney Donetta Wiethe's argument that Christmas has become so secular that the federal holiday does not violate the opening clause of the First Amendment, which states, “Congress shall make no law respecting an establishment of religion.”

        Judge Dlott said the government 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.”

        No reasonable person would see the federal holiday as an endorsement of Christianity “in particular or religion in general,” the judge added.

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

        The judge rejected Mr. Ganulin's claim that the holiday violates his right to equal protection or his freedom of association and she concluded there was a “rational, secular reason for the establishment of the holiday.”

        Justice Department lawyers must respond to Mr. Ganulin's brief by March 23.

       



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