# Opposition Brief — Ganulin v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0865%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 973

## Text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0865%3A2. Public record. Not legal advice.