Opposition Brief — Ganulin v. United States

No. 00-1355 MAR 30 2001

IN THE OBFICE OF THE CLERK

Supreme Court of the United States

OCTOBER TERM, 2001

RICHARD GANULIN,

Petitioner,

Was

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF IN OPPOSITION OF RESPONDENTS

JEFFREY NIEMER, PATTY HEMSATH,

AND ANNE DOLAN

J. STEVEN JUSTICE KEVIN J. HASSON

TAFT, STETTINIUS & COUNSEL OF RECORD

HOLLISTER LLP ERIC W. TREENE

1800 STAR BANK CENTER ANTHONY R. PICARELLO, JR.

425 Walnut Street THE BECKET FUND FOR

Cincinnati, OH 45202 RELIGIOUS LIBERTY

(513) 357-9383 1350 Connecticut Ave., N.W.

Suite 605

Washington, D.C. 20036

(202) 955-0095

Counsel for Respondents

QUESTION PRESENTED

Whether the designation of Christmas as a federal

holiday is so plainly consistent with the Establishment Clause

of the First Amendment that this Court should affirm that

designation by summary disposition on the merits. See. e. g.,

Stone v. Graham, 449 U.S. 39 (1980) (per curiam).

A rN ee an OR, Ue

TABLE OF CONTENTS

SPE eNO EIMIEINY BRUEPsasnicsnsessnrnnecasseseosannsasscscuacscnsensnnsans i

IE FUE BRUIT S TID ccncnesstcensecnscsosenssecansenscanscennsnsane iv

REASONS FOR DENYING THE WRIT .....00... ee 2

I. PLENARY REVIEW IS UNNECESSARY....._......... 2

II. SUMMARY DISPOSITION ON THE MERITS IS

INIT iiss ceaicechaeateheiaidoneiba pbavecnvihenaninntenniens 2

Ill. ©THE FEDERAL CHRISTMAS HOLIDAY IS

PERMISSIBLE GOVERNMENT CULTURAL

I aianisctbaicesidaincksastinianneniovsincanatwientnsaanessanasas 3

A. The federal Christmas holiday involves

no religious coercion by the government.............. 7

B. The federal Christmas holiday involves

no religious proselytizing or endorsement

Be i le giitecsistnneniseneninesadesscsacsnesscvonssesn 7

1. The historical context of the federal

Christmas holiday demonstrates that

the holiday is permissible.......................... 7

2. The contemporaneous context of the

federal Christmas holiday demonstrates

that the holiday is permissible................. 10

C. The federal Christmas holiday satisfies

the three-part Lemons test. ........:...0.....sssccssscescseees 11

ir iced sorsanipbindesigtiotinuncnanenisaserenes 14

il

TABLE OF AUTHORITIES

CASES

ACLU v. Schundler, 168 F.3d 192 (3d Cir. 1999)... 11

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).. 11

Agostini v. Felton, 521 U.S. 203 (1997) .........cccceceseceteeeeeee 13

Board of Regents of Univ. of Wis. Sys. v. Southworth, 120 S.

1, I ciesniei-censnanaisishnncennhcosacehapaainsncmessbapdenbidatinaeeds a

Capitol Square Rev. and Advisory Bd. v. Pinette, 515 U.S.

FIR attra cniscancanedcncdnetien A ieaaaber in sisaeeinin diac onnitnceiennsties 3

County of Allegheny v. American Civil Liberties Union

Greater Pittsburgh Chapter, 492 U.S. 573 (1989)....... 2, 10

Edwards v. Aguillard, 482 U.S. 578 (1987) .0......ceeceeeeeeeeeee 6

Engel ¥. Vitae, STO US. 421 (IGGL) ....cccccsressoesecsssscccnasenssees 6

Gallagher v. Crown Kosher Super Market of Massachusetts,

pe a ey 6 | | ee Sa eee ere 3

In re Lang, 14 F. Cas. 1097 (D. Mass. 1869) ......0.....e eee 9

In re McGlynn, 16 F. Cas. 122 (D. Mass. 1872)..............:000 9

. Inre Worthington, 30 F. Cas. 641 (W.D. Wisc. 1877)........ 10

Larson v. Valente, 456 U.S. 228 (1982) .............ccceeeeeeeees 1]

Lee v. Weisman, 505 U.S. 577 (1992) ...........ccccccssecscsessereeeees 6

Lemon v. Kurtzman, 403 U.S. 602 (1971)................ 6, 11, 12

Marsh v. Chambers, 463 U.S. 783 (1983)...................00045 4,6

McGowan v. Maryland, 366 U.S. 420 (1961)................c 3

People v. Thielman, 72 N.W. 1102 (Mich. 1897).................. 9

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S.

ee I aicius tacesiacasioschacauadidicanehsiunnih Adlandibeigibnidikatdemielomtesiaaee 5

Presiding Bishop of the Church of Jesus Christ of Latter Day

Saints v. Amos, 483 U.S. 327 (1987).............ccecccceeeess 12, 13

Rust v. Sullivan, 500 U.S. 173 (1991)...........cccssscssseesseesnsees 4

Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266 (2000) 6, 7

School Dist. of Abington Tp. v. Schempp, 374 U.S. 203

I FUME Mics cissiaLaosaciencacsanlisiasstiiceunsoniiinnsss i sieleagetiatenamiahdalan tevaiubnumupaide 4,6

Sloss Iron & Steel Co. v. Harvey, 22 So. 994 (1898) ............ 9

Stone v. Graham, 449 U.S. 39 (1980)... eee 2, 6, 14

ill

Tice v. Frazier, 49 P. 1038 (Ore. 1897) ..............cscecscsecscseesee 9

Wallace v. Jaffree, 472 U.S. 38 (1985).......cccccccccsssssscsesessesees 6

Walz v. Commissioner, 397 U.S. 664 (1970)..........000006- 12, 13

Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986)........ 11

Zorach v. Clauson, 343 U.S. 306 (1952) .....ccccceeeeeceseeeee Yan

STATUTES

FNS Bi hire SUD xcsicieesnnssnsesneetenceosndeasmilae a aman passim

Act of June 28, 1870, ch. 167, 16 Stat. 168 .0....0.......cccccccccceee 8

Act of June 28, 1894, ch. 118, 28 Stat. 96.0.0. 9

PLME Fue LO Be Siri secate odin seins 9

Bankruptcy Act of 1867, § 48, 14 Stat. 540.0000. mm

GEN. LAws OR. 1843-1872, c. 11, tit. 7, § 899.00. 10

J. Res. of Jan. 6, 1885, No. 5, 23 Stat. 516 woe eee 8

OTHER AUTHORITIES

BARNETT, THE AMERICAN CHRISTMAS (1954) .0....ccc.ccceeeeeeeee 9

MAX SCHELER, MAN’S PLACE IN NATURE (H. Meyerhoff

eS | | ERT ARAN kD 6

MIRCEA ELIADE, THE QUEST: HISTORY AND MEANING IN

REED DOD sexctsicnnatadicanani ate Pere: 5

VICTOR W. TURNER, THE RITUAL PROCESS: STRUCTURE AND

ANTES TRAM TEIN CIID iccsicacsssimsctactinnccatatcseeee aeons 6

IN THE

Supreme Court of the United States

OCTOBER TERM, 2001

RICHARD GANULIN,

Petitioner.

Va

UNITED STATES OF AMERICA.

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF IN OPPOSITION OF RESPONDENTS

JEFFREY NIEMER, PATTY HEMSATH,

AND ANNE DOLAN

Respondents Jeffrey Niemer, Patty Hemsath, and Anne

Dolan, federal employees and intervenors-appellees below,

respectfully submit this brief in opposition to the Petition for

Wnit of Certiorari filed by Petitioner Richard Ganulin. plaintiff-

appellant below.

REASONS FOR DENYING THE WRIT

I. PLENARY REVIEW IS UNNECESSARY.

The decision below is an unpublished affirmance of a

district court decision upholding the designation of Christmas

as a federal holiday. It neither conflicts with any decisions of

this Court, nor creates or exacerbates any meaningful split of

authority among the circuits, and the Petition for Wnt of

Certiorari contains no claim to the contrary. Under the Rules of

this Court, plenary review is plainly unnecessary. See Rule 10.

IT. SUMMARY DISPOSITION ON THE MERITS IS

APPROPRIATE.

Instead, the Court should decide this case by summary

disposition on the merits. See Rule 16.1; see, e.g., Stone v.

Graham, 449 U.S. 39 (1980) (per curiam). The federal statute

at issue in this case—which declares legal holidays on various

days, including Christmas, and gives all federal employees the

day off on those days—is unmistakably constitutional.

Governments, always and everywhere, have marked in law

culturally significant days and accommodated their voluntary

celebration; culturally significant days, always and everywhere,

include religious and nonreligious celebrations alike.

In Lynch v. Donnelly, 465 U.S. 668 (1984), this Court

emphasized that a government nativity scene could

constitutionally be displayed so long as its context made clear

that it was merely one cultural offering among many.

Similarly, in County of Allegheny v. American Civil Liberties

Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989), this

Court stressed that a menorah could constitutionally be

displayed because its particular context indicated that it was but

one item in a larger display celebrating cultural diversity.

Context, of course, may be temporal as well as spatial. And

2

~

the appropriate context for evaluating governmental celebration

of cultural holidays—whether with displays or with

declarations or proclamations—consists of the government’s

other cultural offerings throughout the year. Cf Capitol Square

Rev. and Advisory Bd. v. Pinette, 515 U.S. 753, 777 (1995)

(“the reasonable observer in the endorsement inquiry must be

deemed aware of the history and context of the community and

forum in which the religious display appears.”) (O’Connor, J.,

concurring). So long as that context demonstrates that the

government is simply acknowledging or accommodating a

popular holiday in the culture, the Establishment Clause is

easily satisfied. This is true, moreover, whether the question is

considered under the coercion analysis of Lee v. Weisman, 505

U.S. 577, 587 (1.992), the endorsement analysis of Santa Fe

Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266, 2278, 282-83 (2000),

or the tripartite test of Lemon v. Kurtzman, 403 U.S. 602, 612-

13 (1971).

By granting summary disposition on the merits——and

making this reasoning unmistakably clear, once and for all—the

Court could provide needed clarity to its public holiday cases

and direction to the lower courts.

Ill. |THE FEDERAL CHRISTMAS HOLIDAY IS

PERMISSIBLE GOVERNMENT CULTURAL

EXPRESSION.

The ubiquitous government practice of instituting legal

holidays in recognition of cultural festivals, such as the

Christmas holiday at issue here, is a manifestly constitutional

form of government expression.

The Constitution generally affords state and federal

‘Summary disposition is also appropriate for Petitioner’s

Freedom of Association and Equal Protection claims. See

McGowan v. Maryland, 366 U.S. 420, 429-30 (1961).

3

governments plenary control over their own speech, and makes

them primarily accountable to the electorate, not the judiciary,

for the positions they express. See Board of Regents of Univ. of

Wis. Sys. v. Southworth, 120 S. Ct. 1346, 1357 (2000); Rust v.

Sullivan, 500 U.S. 173, 192-95 (1991). Subject to the First

Amendment’s prohibition on government expression that tends

to establish religion, and to other narrow exceptions, the

government may speak as it chooses.

Among the many permissible subjects of government

expression are the cultural aspects of religion. In fact, “[t]here

is an unbroken history of official acknowledgment by all three

branches of government of the role of religion in American life

from at least 1789.” Lynch v. Donnelly, 465 U.S. 668, 674

(1984). Examples of these acknowledgements abound. £.g.,

id. at 675-678; Marsh v. Chambers, 463 U.S. 783, 792 (1983);

see also School Dist. of Abington Twp. v. Schempp, 374 U.S.

203, 225 (1963) (noting that government schools may teach

non-devotional courses on the Bible or religion, and that such

courses are commendable).

Most notable for present purposes, the Court in Lynch

emphasized in dicta that the government is permitted to declare

national holidays on religious holidays, without redefining them

as secular:

Beginning in the early colonial period long before

Independence, a day of Thanksgiving was celebrated as

a religious holiday to give thanks for the bounties of

Nature as gifts from God. President Washington and

his successors proclaimed Thanksgiving, with all its

religious overtones, a day of national celebration and

Congress made it a National Holiday more than a

century ago. That holiday has not lost its theme of

expressing thanks for Divine aid any more than has

Christmas lost its religious significance.

4

==

Executive Orders and other official announcements

of Presidents and of the Congress have proclaimed both

Christmas and Thanksgiving National Holidays in

religious terms. And, by Acts of Congress, it has long

been the practice that federal employees are released

from duties on these National Holidays, while being

paid from the same public revenues that provide the

compensation of the Chaplains of the Senate and the

House and the military services. Thus, it is clear that

Government has long recognized—indeed it has

subsidized—holidays with religious significance.

Id. at 675-76 (footnotes, citations omitted, emphasis added).

Moreover, although the Court was divided over the créche at

issue in Lynch, even the dissenting justices opined that “public

designation of Christmas day as a holiday is constitutionally

acceptable.” Jd at 710 (Brennan, J., joined by Marshall,

Blackmun and Stevens, JJ., dissenting).

In short, if government is to mark and make room for

cultural celebrations generally—and one can scarcely conceive

of a government that does not—some government holiday

expressions will necessarily include religious elements.’

*Nor could it be otherwise in a free society. This Court

has recognized that the human quest for truth and transcendence

is ubiquitous. Zorach v. Clauson, 343 U.S. 306, 313 (1952)

(recognizing “the religious nature of our people,” and that “the

spiritual needs of man” give rise to so “wide a variety of beliefs

and creeds”); Planned Parenthood of Southeastern Pa. v.

Casey, 505 U.S. 833, 851 (1992) (“At the heart of liberty is the

right to define one’s own concept of existence, of meaning, of

the universe, and of the mystery of human life.”). See also

MIRCEA ELIADE, THE QUEST: HISTORY AND MEANING IN

RELIGION 8-9, 68 (1969) (historian of religion describing

human beings as “homo religiosus”); MAX SCHELER, MAN’S

5

Government expression may thus acknowledge or reflect the

broader culture, including its religious elements, Marsh, 463

U.S. at 792 (permitting government religious expression as

“acknowledgment of beliefs widely held among the people of

this country”), so long as it does not establish religion. That is,

government may freely recognize the role of religion in society,

so long as it does not coerce compliance with religion, Lee, 505

U.S. at 587, proselytize for or “endorse” it, Santa Fe, 120 S. Ct.

at 2278,’ or otherwise become overly entangled with it, Lemon,

403 U.S. at 613-14.

PLACE IN NATURE 36-37 (H. Meyerhoff trans. 1961)

(philosophical anthropologist identifying “openness to the

world,” or capacity for transcendence, as distinguishing

characteristic of human beings). This religious impulse

necessarily finds expression in the broader culture, including in

the form of regularly recurring, wholly voluntary, cultural

celebrations that signify the extraordinary meaning of certain

occasions. See, e.g., McGowan, 366 U.S. at 450 (describing

Sunday as a “day apart from all others”); cf VICTOR W.

TURNER, THE RITUAL PROCESS: STRUCTURE AND ANTI-

STRUCTURE 96-97 (1969) (cultural anthropologist discussing

phenomenon of communitas, or collective departure from

normal course of life to express special meaning and preserve

social order).

*These two risks appear most likely to materialize where

the religious expressions occur in the context of a primary or

secondary public school. See, e.g., Santa Fe Indep. Sch. Dist. v.

Doe, 120 S. Ct. 2266 (2000); Lee v. Weisman, 505 U.S. 577

(1992); Edwards v. Aguillard, 482 U.S. 578 (1987); Wallace v.

Jaffree, 472 U.S. 38 (1985); Stone v. Graham, 449 U.S. 39

(1980); School Dist. of Abington Tp. v. Schempp, 374 U.S. 203

(1963); Engel v. Vitale, 370 U.S. 421 (1962).

6

_ -

ee

A. The federal Christmas holiday involves no

religious coercion by the government.

This Court long ago put to rest the notion that

government closure on religious holidays was somehow

coercive. In Zorach v. Clauson, 343 U.S. 306 (1952), the Court

emphasized that the government

may not coerce anyone to attend church, to observe a

religious holiday, or to take religious instruction. But it

can close its doors or suspend its operations as to those

who want to repair to their religious sanctuary for

worship or instruction.

Id. at 314 (emphasis added).

B. The federal Christmas holiday involves no

religious proselytizing or endorsement by the

government.

In assessing whether government has impermissibly

proselytized for or endorsed religion, the Court views the

government expression from the perspective of a reasonable

observer who is acquainted with the full context of the

expression, including any statutory text, history, and

implementation. See Santa Fe Indep. Sch. Dist. v. Doe, 120

S. Ct. 2266, 2278, 2283 (2000); Capitol Square Review and

Advisory Bd. v. Pinette, 515 U.S. 753, 780 (1995) (O’Connor,

J., concurring).

1. The historical context of the federal

Christmas holiday demonstrates that the

holiday is permissible.

Here, the reasonable observer would know that there is a

lengthy, “unbroken history,” Lynch, 465 U.S. at 674, of

7

recognizing Christmas as a state and federal holiday. Congress

began legislating Christmas as a public holiday for the District

of Columbia in 1870, providing:

That the following days, to wit: The first day in

January, commonly called New Year’s day, the fourth ;

day of July, the twenty-fifth day of December,

commonly called Christmas day, and any day appointed

or recommended by the President of the United States

as a day of public fast or thanksgiving, shall be holidays

within the District of Columbia, and shall, for all

purposes of presenting for payment or acceptance for

the maturity and protest, and giving notice of the

dishonor of bills of exchange, bank checks and

promissory notes or other negotiable or commercial

paper, be treated and considered as is the first day of the

week, commonly called Sunday, and all notes, drafts,

checks, or other commercial or negotiable paper falling

due or maturing on either of said holidays shall be

deemed as having matured on the day previous.

Act of June 28, 1870, ch. 167, 16 Stat. 168.

In an 1885 joint resolution respecting holiday

payment for federal workers, Congress allowed “the

employees of the Navy Yard, Government Printing Office,

Bureau of Printing and Engraving, and all other per diem

employees of the Government on duty at Washington, or

elsewhere in the United States . . . the following holidays, to

wit: .. . the twenty-fifth day of December, . . . and shall

receive the same pay as on other days.” J. Res. of Jan. 6,

1885, No. 5, 23 Stat. 516.

In 1894, the fifty-third Congress began the process,

which continues with the statute at issue here, of enumerating

the public holidays:

That the first Monday of September in-each year, being

the day celebrated and known as Labor’s Holiday, is

hereby made a legal public holiday, to all intents and

purposes, in the same manner as Christmas, the first day

of January, the twenty-second day of February, the

thirtieth day of May, and the fourth day of July are now

made by law public holidays.

Act of June 28, 1894, ch. 118, 28 Stat. 96.4

The individual States have recognized the legal status of

Christmas even longer. All States recognize Christmas as a

holiday. The first was Alabama in 1836, followed soon by

Louisiana and Arkansas in 1838. Ohio recognized the holiday

in 1857. See generally BARNETT, THE AMERICAN CHRISTMAS

20 (1954) (listing dates of first legal recognition of Christmas

Day by States and Territories). For more than a century and a

half, these provisions have allowed such accommodations as

the closing of state government offices, banks, and schools.

\

Christmas has been legally recognized in myriad other

ways. Alabama did not require convicts to work on Christmas

Day. Alabama Acts 1894-95, p. 858, § 40 (cited in Sloss Jron

& Steel Co. v. Harvey, 22 So. 994, 994 (1898)). Many states

specifically forbade the sale of liquor on Christmas, see, é..,

People v. Thielman, 72 N.W. 1102, 1102 (Mich. 1897), and

courts have long been closed. See, e.g., Tice v. Frazier, 49 P.

1038 (Ore. 1897) (interpreting an 1862 statute which read “The

courts of justice may be held, and judicial business may be

transacted, on any day, except as provided in this section. No

‘The federal Bankruptcy Act similarly “exclude{d] . . .

Christmas Day, . . . from the computation of time within

which any act shall be done under that law.” Act of 1867, §

48, 14 Stat. 540; Jn re McGlynn, 16 F. Cas. 122 (D. Mass.

1872); In re Lang, 14 F. Cas. 1097 (D. Mass. 1869).

9 )

court can be opened, nor can any judicial business be transacted

on... Christmas Day,” GEN. LAWS OR. 1843-1872, ch. 11, tit.

7, § 899); In re Worthington, 30 F. Cas. 641 (W.D. Wisc. 1877)

(“the 25th day of December and the Ist day of January are

declared to be holidays”). In short, the reasonable observer

would know of the “history and ubiquity,” Allegheny, 492 U.S.

at 630-31 (O’Connor, J., concurring), of government

recognition of Christmas.

2. The contemporaneous context of the

federal Christmas holiday demonstrates

that the holiday is permissible.

Just as importantly, a reasonable observer would know

that Christmas is only one in a broad and diverse array of

government holidays, religious and nonreligious alike. In

particular, such an observer would know that the statute

instituting the federal Christmas holiday, 5 U.S.C. § 6103,

marks not only that Christian holiday, but the more generically

religious Thanksgiving holiday, secular holidays with some

religious overtones (Memorial Day and Veterans Day), secular

holidays with ethnic overtones (Martin Luther King, Jr.’s

Birthday and Columbus Day), secular holidays with patriotic

overtones (George Washington’s Birthday and Independence

Day), a secular holiday with primarily economic significance

(Labor Day), and a secular holiday that simply marks the new

calendar year (New Year’s Day). See 5 U.S.C. § 6103. Like

the diverse elements in the visual displays approved in Lynch

and Allegheny, the varied cultural celebrations here provide the

context necessary to dispel any notion of government

proselytizing or endorsement. See Lynch v. Donnelly, 465 U.S.

668 (1984); County of Allegheny v. American Civil Liberties

Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989).

Seen in this context, government acknowledgement of

holidays with special significance to some religious groups is

10

thus ao more problematic than its recognition of holidays with

special significance to certain ethnic groups. The

Establishment Clause’s prohibition on religious preferences is

coextensive with that against racial and ethnic preferences

found in the Fifth and Fourteenth Amendments. Compare

Larson v. Valente, 456 U.S. 228, 246 (1982) (applying strict

scrutiny to sect preferences), with Adarand Constructors, Inc. v.

Pena, 515 U.S. 200, 227 (1995) (applying strict scrutiny to

racial preferences), and Wygant v. Jackson Bd. of Educ., 476

U.S. 267, 273 (1986) (applying strict scrutiny to racial or ethnic

preferences) (plurality opinion of Powell, J.).

The government may no more prefer Irish-Americans to

English-Americans than it may prefer Christians to Buddhists.

Nevertheless, no one seriously argues that government

celebrations of St. Patrick’s Day are a constitutional affront to

Anglophiles. Nor do we entertain lawsuits by European-

Americans seeking to enjoin African-American History Month.

The reason is plain: in the context of the vast cultural offerings

of our federal, state, and local governments, no one could

reasonably suppose that any one holiday honoring any

particular ethnicity is a government declaration of ethnic

preference. For precisely the same reason, government

recognition of particular religious celebration—whether it be

Ramadan or a Hindu New Year in Jersey City, New Jersey, see,

e.g., ACLU v. Schundler, 168 F.3d 192 (3d Cir. 1999), the

federal recognition of Christmas at issue here, or the

government’s erecting a menorah on the Ellipse for

Hannukah—are not declarations of religious preference.

Rather, they, like a government’s various ethnic offerings, are

simply small pieces in a larger mosaic of cultural diversity.

c. The federal Christmas holiday satisfies the

three-part Lemon test.

Application of the criteria set out in Lemon v. Kurtzman,

11

403 U.S. 602 (1971), leads to the same conclusion. The

Christmas holiday: (1) has a secular legislative purpose; (2) has

a principal or primary effect that neither advances nor inhibits

religion; (3) does not foster excessive government entanglement

with religion. Lemon, 403 U.S. at 612-13.

Granting holidays of societal significance is itself, and

without more, a valid secular purpose. See McGowan v.

Maryland, 366 U.S. 420, 449-51 (1961). However, since the

Christmas holiday may also be viewed as an accommodation of

religion, it is well-established that reducing governmental

interference with voluntary religious exercise—here of federal

employees—is a secular purpose. See Presiding Bishop of the

Church of Jesus Christ of Latter Day Saints v. Amos, 483 U.S.

327, 335 (1987).

Second, giving federal employees the day off—even

with knowledge that some will use that free time for religious

worship—does not have the effect of positively advancing

religion within the meaning of the Establishment Clause. See

Gallagher v. Crown Kosher Super Market of Massachusetts,

Inc., 366 U.S. 617, 628-29 (1961) (noting that Sunday closing

laws are valid “even if the day [of rest] thus selected is chosen

because a great majority of the people celebrate it as a day of

peculiar sanctity”) (internal quotations omitted). Instead, the

government’s accommodation simply acknowledges the

existence of this religious exercise and avoids stifling it.

Zorach, 343 U.S. at 314 (“When the state . . . cooperates with

religious authorities by adjusting the schedule of public events

to sectarian needs, it follows the best of our traditions. For it

then respects the religious nature of our people and

accommodates the public service to their spiritual needs.”’)

Finally, legal holidays involve no governmental

surveillance of or intrusion into religious affairs that typically

supports a finding of “excessive entanglement.” See Walz v.

12

Commissioner, 397 U.S. 664, 675 (1970). But cf. Agostini v.

Felton, 521 U.S. 203, 232-33 (1997) (treating “excessive

entanglement” inquiry as part of “effects” inquiry). Indeed, the

government’s providing a day off avoids interference with

religious exercise, and so inherently disentangles government

and religion. See Amos, 483 U.S. at 340.

_ Thus, providing a legal holiday for Christmas is fully

constitutional, no matter which Establishment Clause standard

is applied. Instead, the holiday falls within government’s broad

authority to express acknowledgement of, and to accommodate,

voluntary religious exercise. All levels of American

government are—and have been for a very long time—in the

business of celebrating and accommodating culturally

significant days, religious and nonreligious alike. This case

represents a perfect illustration of why that practice is plainly

constitutional.

13

CONCLUSION

For the foregoing reasons, the Court should deny the

plenary review that Petitioner requests, and instead affirm the

decision below by summary disposition on the merits. See Rule

16.1; see, e.g. Stone v. Graham, 449 U.S. 39 (1980) (per

curiam).

Respectfully submitted,

KEVIN J. HASSON

Counsel of Record

ANTHONY R. PICARELLO, JR.

THE BECKET FUND

FOR RELIGIOUS LIBERTY

1350 Connecticut Ave., N.W.

Suite 605

Washington, D.C. 20036

(202) 955-0095

J. STEVEN JUSTICE

TAFT, STETTINIUS &

HOLLISTER LLP

1800 STAR BANK CENTER

425 Walnut Street

Cincinnati, OH 45202

(513) 357-9383 =

Counsel for Respondents

March 2001

14

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