CORE TERMS:
holiday, religious, religion, secular, celebrate, sectarian,
defendant-intervenor, display, celebration, First Amendment, secularized,
establishment, cultural, confer, secular purpose, church, entanglement,
expenditure, endorsement, declaring, endorsing, prayer, joined, equal
protection, matter of law, impermissibly, convenience, allegiance, unwelcome,
observer
COUNSEL: RICHARD GANULIN, plaintiff, Pro se, Cincinnati, OH.
For USA, defendant: Donetta Donaldson Wiethe, U.S. Department of Justice,
Cincinnati, OH. Joseph Steven Justice, Taft, Stettinius
& Hollister, Cincinnati, OH.
For JEFFERY NIEMER, PATTY HEMPSTEAD, ANNE DOLAN, intervenors: Joseph Steven
Justice, Taft, Stettinius
& Hollister, Cincinnati, OH.
JUDGES: Susan J. Dlott, United States District Judge.
OPINIONBY: Susan J.
Dlott
OPINION:
[*825]
ORDER GRANTING MOTIONS TO DISMISS
THIS COURT WILL ADDRESS
PLAINTIFF'S SEASONAL CONFUSION
ERRONEOUSLY BELIEVING CHRISTMAS
MERELY A
RELIGIOUS INTRUSION.
WHATEVER THE REASON
CONSTITUTIONAL OR OTHER
CHRISTMAS
IS NOT
AN ACT OF BIG BROTHER!
CHRISTMAS IS ABOUT JOY
AND GIVING AND SHARING
IT IS ABOUT THE CHILD WITHIN US
IT IS MOSTLY ABOUT CARING!
ONE IS NEVER JAILED
FOR NOT HAVING A TREE
FOR NOT GOING TO
CHURCH
FOR NOT SPREADING GLEE!
THE COURT WILL UPHOLD
SEEMINGLY CONTRADICTORY CAUSES
[*826]
DECREEING
"THE
ESTABLISHMENT"
AND
"SANTA"
BOTH WORTHWHILE
"CLAUS(es)!"
WE ARE ALL BETTER
[**2] FOR SANTA
THE EASTER BUNNY TOO
AND MAYBE THE GREAT PUMPKIN
TO NAME JUST A FEW!
AN EXTRA DAY OFF
IS HARDLY HIGH TREASON
IT MAY BE SPENT AS YOU WISH
REGARDLESS OF REASON.
THE COURT HAVING READ
THE LESSONS OF
"LYNCH" n1
REFUSES TO PLAY
THE ROLE OF THE GRINCH! n2
THERE IS ROOM IN THIS COUNTRY
AND IN ALL OUR HEARTS TOO
FOR DIFFERENT CONVICTIONS
AND A DAY OFF TOO!
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1
Lynch v. Donnelly, 465 U.S. 668, 79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984).
n2 Dr. Seuss, How the Grinch Stole Christmas.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
This matter is before the Court on the Defendant United States' Motion to
Dismiss (doc. # 21) and
Defendant-Intervenors Jeff Neimer's, Anne Dolan's, and Patty Hemsath's Motion to Dismiss (doc. #
22), pursuant to Rule 12 of the Federal Rules of Civil Procedure. The Defendant
and
Defendant-Intervenors seek dismissal of Plaintiff Ganulin's Amended Complaint, which challenges the
constitutionality of
5 U.S.C. § 6103. Section 6103 declares Christmas Day to be a legal public
holiday. Plaintiff
[**3] Ganulin has filed briefs opposing dismissal and the Christian Coalition has
filed an amicus curiae brief in favor of dismissal. The Court has carefully
considered all the filings and the relevant case law. Upon consideration of the
law, the Motions to Dismiss are hereby
GRANTED.
I. PROCEDURAL BACKGROUND
Plaintiff Ganulin filed a Complaint against the United States of America on
August 4, 1998 alleging that the statute making Christmas Day a legal public
holiday violated the
Establishment Clause of the
First Amendment to the United States Constitution ("the
Establishment Clause"). Jeffrey Niemer, Patty Hemsath, and Anne Dolan moved to intervene pursuant to
Rule 24(a) of the Federal Rules of Civil Procedure on November 2, 1998 and were
granted status as
defendant-intervenors on November 6, 1998.
Defendant-Intervenors are federal employees seeking to protect their interest in the employment
benefit of a Christmas
holiday.
Plaintiff filed an Amended Complaint on November 25, 1998 claiming that a legal
public
holiday on Christmas Day pursuant to
5 U.S.C. § 6103 violates the
Establishment Clause and interferes with his rights to
equal protection and
[**4] freedom of association protected by the United States Constitution. Defendant
and
Defendant-Intervenors then filed their Motions to Dismiss and the Christian Coalition filed an
amicus curiae brief. They argue that Plaintiff lacks standing to bring this
action and that he has failed to state a claim upon which relief can be granted.
II. LEGAL STANDARD FOR MOTIONS TO DISMISS
The purpose of a motion to dismiss or a motion for judgment on the pleadings is
to allow a defendant to test whether, as a
matter of law, the plaintiff is entitled to legal relief even if all facts and allegations in
the complaint are true. See
Mayer v. Mylod, 988 F.2d 635, 638
[*827] (6th Cir. 1993). For purposes of dismissal under Rules 12(b)(6) or 12(c), the complaint must be
construed in the light most favorable to the nonmoving party and its
allegations taken as true. See
Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995). To survive a motion for judgment on the pleadings,
"a. . . complaint must contain either direct or inferential allegations
respecting all the material elements to sustain a recovery under some viable
legal theory."
Scheid v. Fanny Farmer Candy Shops. Inc., 859 F.2d 434, 436 (6th Cir. 1988)
[**5] (citations and internal quotations marks omitted); accord
Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995). The test for dismissal, however, is a stringent one.
"[A] complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see also
Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1189 (6th Cir. 1996).
Consequently, a complaint will not be dismissed pursuant to a motion for
judgment on the pleadings unless there is no law to support the claims made,
the facts alleged are insufficient to state a claim, or there is an
insurmountable bar on the face of the complaint. Because a motion for judgment
on the pleadings is directed solely to the complaint, the focus is on whether
the plaintiff is entitled to offer evidence to support the claims, rather than
on whether the plaintiff will ultimately prevail. See
Roth v. Steel Prods., 705 F.2d 134, 155 (6th Cir. 1983);
Haffey v. Taft, 803 F. Supp. 121, 127 (S.D. Ohio 1992).
[**6]
III. ANALYSIS
A. Standing
Defendant and
Defendant-Intervenors both move for dismissal on the grounds that Ganulin lacks standing to pursue
these claims in federal court. A review of the basic precepts of standing and
the special precepts for standing in
Establishment Clause cases and taxpayer cases is in order before discussing the arguments of
the parties.
The jurisdiction of the federal courts is limited by Art. III of the
Constitution to
"Cases" and
"Controversies." Inherent in the case-or-controversy limitation are two concerns. First,
"those words limit the business of the federal courts to questions presented in
an adversary context and in a form historically viewed as capable of resolution
through the judicial process."
Flast v. Cohen, 392 U.S. 83, 95, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968). Second,
"those words define the role assigned to the judiciary in a tripartite
allocation of power to assure that the federal courts will not intrude into
areas committed to other branches of government." Id. The dual limitation imposed by the case-or-controversy requirement is
often referred to as justiciability. See id.
The concept of standing is one aspect of justiciability.
[**7] See
id. at 98. At an irreducible minimum, the Constitution requires that the party invoking
jurisdiction bear the burden of proving the following three elements: First,
the plaintiff must have suffered an injury in fact-an actual injury which is
concrete and particularized. Second, there must be a causal connection between
the injury and the conduct complained of--the injury has to be fairly traceable
to the challenged action of the defendant. Third, it must be likely, and not
merely speculative, that the injury will be redressed by a favorable decision.
See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992);
Briggs v. Ohio Elec. Comm'n, 61 F.3d 487, 491 (6th Cir. 1995).
On a motion to dismiss
"general factual allegations of an injury resulting from the defendant's conduct
may suffice [because] we 'presume that general allegations embrace those
specific facts that are necessary to support the claim.'"
Lujan, 504 U.S. at 561 (quoting
Lujan v. National Wildlife Fed., 497 U.S. 871, 889, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990)).
1. Standing in
First Amendment and
Establishment Clause Cases
There are special concerns
[**8] in
First Amendment and
Establishment Clause cases regarding standing. Plaintiffs bringing claims pursuant to the
Establishment Clause or other
First Amendment rights must meet all three aspects of
[*828] the Lujan test to establish standing. However, the Sixth Circuit has noted
that
First Amendment plaintiffs do not bear a heavy burden, see
Briggs, 61 F.3d at 492, and the standing inquiry in
Establishment Clause cases can be tailored to reflect the type of injury
Establishment Clause plaintiffs are likely to suffer, see
Suhre v. Haywood Cty., 131 F.3d 1083, 1086 (4th Cir. 1997). Plaintiffs must allege more than an abstract injury, but actual injury to
individual values of an abstract or esoteric nature can provide the basis for
standing. See id. In conducting its standing inquiry, the courts must be
careful not to find standing for a plaintiff on the assumption that no one will
be found to have standing if the plaintiff at bar lacks standing. See
Valley Forge Christian College v. Americans United for the Separation of Church and State, 454 U.S. 464, 489, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). The federal courts are not always the proper vehicle for seeking
[**9] to correct constitutional wrongs. See id.
The Supreme Court has
"consistently held that a plaintiff raising only a generally available grievance
about government--claiming only harm to his and every citizens's interest in
the proper application of the Constitution and the laws, and seeking relief
that no more directly and tangibly benefits him than it does the public at large" lacks standing.
Lujan, 504 U.S. at 573-74. For example, a plaintiff would not have standing if his or her sole complaint
was that a government act or policy violated the Constitution. See
Valley Forge, 454 U.S. 464 at 485, 102 S. Ct. 752, 70 L. Ed. 2d 700. The respondents in Valley Forge sought the district court to declare
unconstitutional a decision of the Department of Health, Education, and Welfare
to convey a tract of land to the Valley Forge Christian College. See
id. at 468. The Supreme Court noted that while the respondents were clearly committed to
the principle of
church and state separation, they lacked standing because they failed
"to identify any personal injury suffered by them as a consequence of the
alleged constitutional error, other than the psychological consequence
presumably
[**10] produced by observation of conduct with which one disagrees."
Id. at 485-86.
Conversely, a plaintiff objecting to a state sponsored
display of
religious symbols has standing because his or her injury is caused by
unwelcome, personal and direct contact with the
religious
display. See
Suhre, 131 F.3d at 1086.
"Direct contact with an
unwelcome
religious exercise or
display works a personal injury distinct from and in addition to each citizen's
general grievance against unconstitutional government contact."
Id. at 1086. Similarly, the Sixth Circuit held that a plaintiff alleging direct contact
with a portrait of Jesus hanging in a public school had standing because
"use of governmental authority to encourage a
sectarian
religious view is sufficient injury if directed towards the plaintiff."
Washegesic v. Bloomingdale Public Sch., 33 F.3d 679, 682 (6th Cir. 1994); see also
Granzeier v. Middleton, 955 F. Supp. 741, 743 n.2 (E.D. Ky. 1997) (finding that plaintiffs repeated exposure to signs allegedly
endorsing
religion in the county courthouse and inability to conduct business in the courthouse
on Good Friday
[**11] was sufficient to
confer standing) aff'd
173 F.3d 568 (6th Cir. 1999).
In another case, the Sixth Circuit held that residents of the Cleveland area
had standing to object to the decision of the Cleveland Hopkins International
Airport to lease space to a
religious organization for use as a chapel. The court stated that even if the plaintiffs
could
"avoid the chapel area. . . . this impingement on their right to use the airport
is sufficient to
confer standing since it would 'force them to assume special burdens' to avoid 'unwelcome
religious exercises.'"
Hawley v. City of Cleveland, 773 F.2d 736, 740 (6th Cir. 1985) (quoting
Valley Forge, 454 U.S. at 487 n.22).
2. Standing in Taxpayer Cases
Finally, and before turning to the specific allegations of standing raised by
Ganulin,
[*829] the Court must examine one more avenue of establishing standing: taxpayer
standing. The Supreme Court first addressed the question of whether taxpayers
had standing to object to federal
expenditures in
Frothingham v. Mellon, 262 U.S. 447, 43 S. Ct. 597, 67 L. Ed. 1078 (1923). The Court ruled that taxpayers had only a
"comparatively minute and indeterminable" interest
[**12] in treasury moneys and that the effect of government
expenditures upon future taxation was too
"remote, fluctuating, and uncertain" to
confer standing on the federal taxpayer.
Id. at 487. The Court modified Frothingham in Flast, holding that under certain
circumstances taxpayers do have standing to challenge the constitutionality of
government
expenditures. The Court defined two requirements for taxpayer standing:
First, the taxpayer must establish a logical link between [the status of
federal taxpayers] and the type of legislative enactment attacked. Thus, a
taxpayer will be a proper party to allege the unconstitutionality only of
exercises of congressional power under the taxing and spending clause of Art.
I, s 8, of the Constitution. It will not be sufficient to allege an incidental
expenditure of tax funds in the administration of an essentially regulatory statute....
Secondly, the taxpayer must establish a nexus between [the status of federal
taxpayers] and the precise nature of the constitutional infringement alleged.
Under this requirement, the taxpayer must show that the challenged enactment
exceeds the specific constitutional limitations
[**13] imposed upon the exercise of the congressional taxing and spending power and
not simply that the enactment is generally beyond the powers delegated to
Congress by Art. I, s 8.
Flast, 392 U.S. at 102-03. That is, for example,
"taxpayers can sue to enjoin congressional appropriations.. . where such
appropriations violate a specific constitutional provision, such as the
Establishment Clause."
Hawley, 773 F.2d at 741. In Flast, taxpayers were found to have standing to challenge the
expenditure of funds for the purchase of instructional materials to be used in parochial
schools. See
392 U.S. at 103.
Flast does not
confer general rights of standing to taxpayers challenging alleged
Establishment Clause violations. The Court has subsequently held that taxpayers do not have
standing under Flast to challenge legislation transferring government property
to a
religious organization if the conveyance was done under the authority of the Property
Clause, Art. IV,
§ 3, cl. 2, and not under the taxing and spending clause of Art. I,
§ 8. See
Valley Forge, 454 U.S. at 480. The Flast exception is a narrow
[**14] one and only applies when an appropriation and not other governmental acts are
at issue. See
Hawley, 773 F.2d 736 at 741.
3. Plaintiff Ganulin's Assertions of Standing
Ganulin asserts several bases for standing in his Amended Complaint:
24.
5 USC 6103 interferes with Plaintiffs natural and equal right of free beliefs and
practices in matters of
religion and culture.
25.
5 USC 6103 is, in effect, a form of imposed assimilation and association on
non-Christians.
26.
5 USC 6103 makes it more difficult for Plaintiff to live in a way consistent with his
beliefs and practices, makes it more difficult for him to effectively instruct
his children about his beliefs and practices, and makes it less likely his
children will understand and respect his beliefs and practices.
27.
5 USC 6103 makes Plaintiff feel like an outsider and not an integral part of the
political community in the United States.
28. Plaintiff and his family, as residents in and citizens of the United
States, are directly and personally exposed to the national legal public
holiday
[*830] of Christmas Day-December
[**15] 25 and cannot avoid that exposure.
29. Plaintiff is a federal taxpayer. Plaintiff is also injured because federal
tax funds are used pursuant to
5 USC 6103. Amended Complaint.
The Court has reservations about finding that Ganulin has established standing
and shares the concerns raised by the United States, the
Defendant-Intervenors and the amicus curiae. First, Ganulin's assertions that
5 U.S.C. § 6103 makes him feel like a political outsider sound like claims of psychological
harm. The Supreme Court has stated that psychological harm is not sufficient
injury in fact to
confer standing. See
Valley Forge, 454 U.S. at 485.
Second, there is a question of whether the harms of which Ganulin complains are
redressable. The Court believes that the majority of Americans, Christians and
non-Christians alike, would likely continue to
celebrate the
secular and
religious aspects of Christmas on December 25 of each year whether or not Christmas Day
is a legal public
holiday. Jewish Americans
celebrate Chanukah and children of many diverse
religious backgrounds go trick-or-treating on Halloween even though these days are not
legal
[**16] public
holidays. If Ganulin only seeks to gain a sense of personal satisfaction in seeing that
the Constitution is upheld, then he lacks standing. See
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S. Ct. 1003, 1018-19, 140 L. Ed. 2d 210 (1998) (stating that psychic satisfaction is not a sufficient Article III remedy to
confer standing).
Third, Ganulin asserts federal taxpayer status without expressly stating in
what way tax funds are unconstitutionally appropriated. In support of his
taxpayer argument, Ganulin cites
Marsh v. Chambers, 463 U.S. 783, 77 L. Ed. 2d 1019, 103 S. Ct. 3330 (1983). In Marsh, a member of the Nebraska legislature opposed the state practice of
funding a chaplain to open each legislative day with a
prayer. See
id. at 784-85. The Supreme Court held that the plaintiff legislator had standing as a member
of a legislature and as a taxpayer whose taxes were used to fund the
chaplaincy. See
id. 463 U.S. at 786 n.4. The facts in this case are distinguishable from the seminal taxpayer cases,
Marsh and Flast. Taxpayer funds were directly provided to
religious entities in Marsh and in Flast. The practice of celebrating Christmas
[**17] Day as a legal public
holiday does not analogously allocate taxpayer funds to
religious organizations. Any potential monetary benefit to
religious organizations flowing from the
holiday is indirect and remote.
These concerns alone, however, are not reason to find that Ganulin lacks
standing. Ganulin likens his case to Suhre and Washegesic where plaintiffs
established standing based on their direct, personal contact with
unwelcome
religious symbols and
displays. See
Suhre, 131 F.3d at 1084 (display of the Ten Commandments in the county courthouse);
Washegesic, 33 F.3d at 681 (display of a portrait of Christ in a public secondary school). Ganulin does not
explicate further as to the nature of the contact to which he and his family
are exposed. The Court presumes that the direct contact Ganulin experiences
would be the closing of federal buildings and functions, such as the closing of
the federal courts and the postal service, for reasons he asserts are
religious in nature.
Although it is a close call, the Court cannot conclude that Ganulin could prove
no set of facts in support of his assertion of standing. See
Conley, 355 U.S. at 45-46.
[**18] Therefore, the Motion to Dismiss cannot be granted on the grounds that Ganulin
lacks standing to bring his claims. The Court turns now to Ganulin's
substantive claims and the arguments for dismissal regarding each claim.
[*831]
B.
Establishment Clause
Ganulin's primary claim is that the
establishment of Christmas Day as a legal public
holiday violates the
Establishment Clause. The
Establishment Clause of the
First Amendment to the Constitution reads:
"Congress shall make no law respecting an
establishment of
religion." The
First Amendment was made binding upon the states by the Fourteenth Amendment. See
Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 757, 132 L. Ed. 2d 650, 115 S. Ct. 2440 (1995). The language of the
Establishment Clause does not make obvious what conduct is prohibited. In
Everson v. Board of Education, 330 U.S. 1, 91 L. Ed. 711, 67 S. Ct. 504 (1947), the Supreme Court attempted to define the scope of the
Establishment Clause:
Neither a state nor the Federal Government can set up a
church. Neither can pass laws which aid one
religion, aid all
religions, or prefer one
religion over another. Neither can force nor influence a person to go or to remain away
from
church
[**19] against his will or force him to profess a belief or disbelief in any
religion. No person can be punished for entertaining or professing
religious beliefs or disbeliefs, for
church attendance or non-attendance. No tax in any amount, large or small, can be
levied to support any
religious activities or institutions, whatever they may be called, or whatever form they
may adopt to teach or practice
religion.
Id. at 16. Despite this attempt to define the scope, the Supreme Court admitted in 1971
that it still could
"only dimly perceive the lines of demarcation in this extraordinarily sensitive
area of constitutional law."
Lemon v. Kurtzman, 403 U.S. 602, 612, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971). The same assessment could be made today.
The Sixth Circuit applies a modified version of the Lemon test when reviewing
Establishment Clause challenges. See
Granzeier v. Middleton, 173 F.3d 568, 573 (6th Cir. 1999). In Lemon the Supreme Court articulated a three part test for examining whether
a statute violates the
Establishment Clause:
First, the statute must have a
secular legislative purpose; second, its principal or primary effect must be one that
[**20] neither advances nor inhibits
religion; finally, the statute must not foster an excessive government
entanglement with
religion.
403 U.S. at 612-13 (internal citations and quotations omitted). As the Sixth Circuit has noted,
however, the Supreme Court has applied the
"endorsement" test in more recent cases. See
Granzeier, 173 F.3d at 572.
The Sixth Circuit considers the
endorsement test to be a clarification of the effects prong of the Lemon test. See
id. at 573. The principle of the
endorsement test is that the
"Establishment Clause, at the very least, prohibits government from appearing to take a
position on questions of
religious belief or from 'making adherence to
religion relevant in any way to a person's standing in the political community.'"
County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 594, 106 L. Ed. 2d 472, 109 S. Ct. 3086 (1989) (quoting
Lynch v. Donnelly, 465 U.S. 668, 687, 79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984) (O'Connor, J., concurring)). Whether a government act or statute
impermissibly endorses
religion is judged from the perspective of a reasonable
observer. See
Granzeier, 173 F.3d at 573. Views on both
[**21] the Sixth Circuit and the Supreme Court are split as to whether the reasonable
observer should be deemed to be aware of the history and context of the act or statute
in question see
Capitol Square, 515 U.S. at 780 (O'Connor, J., concurring,
joined by Souter and Breyer, JJ.);
Americans United for Separation of Church and State v. Grand Rapids, 980 F.2d 1538, 1543-44 (6th Cir. 1992), or whether the reasonable
observer should not be deemed to have any special knowledge, see
Capitol Square, 515 U.S. at 800
[*832] n.5 (Stevens J., dissenting);
Grand Rapids, 980 F.2d at 1557 (Lively J., dissenting).
1. First Prong--Secular Purpose
Ganulin makes two primary assertions concerning the
religious nature of Christmas which the Court must accept as true for purposes of these
Motions. See
Miller, 50 F.3d at 377. First, he asserts that Christmas Day is the time when Christians
celebrate the birth of Jesus Christ, the individual they believe to be their Messiah.
See Amended Complaint P 18. Second, he asserts that on Christmas Day Christians
celebrate the arrival of the legendary Christian figure
"Santa Claus.
[**22]
" See id. P 19. From these premises, Ganulin concludes that the declaration of
Christmas as a legal public
holiday necessarily has a
religious,
sectarian purpose of promoting Christianity. The Court need not reject Ganulin's
premises to reach a different conclusion on the
secular purpose prong of the Lemon test. The Court can accept the
religious origins of the Christmas
holiday and still conclude that 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 the first part of the Lemon test; unless it seems to be a sham, the
government's assertion of a
secular purpose is entitled to deference."
Granzeier, 173 F.3d at 574; see also,
Lynch, 465 U.S. at 680 (stating that an act or statute will be struck down on the basis of the
secular purpose prong only if it
"was motivated wholly by
religious considerations"). Courts have repeatedly recognized that the Christmas
holiday has become largely
secularized. Justice Blackmun stated in County of Allegheny that
"both Christmas and Chanukah are part of
[**23] the same winter-holiday season, which has attained a
secular status in our society."
492 U.S. at 616 (Blackmun, J.). This conclusion has been agreed with in both majority and
dissenting opinions in the lower courts. See e.g.,
Granzeier, 173 F.3d at 580 (Moore, J., dissenting) (Christmas is
"now
secularized to a significant extent.");
Koenick v. Felton, 973 F. Supp. 522, 525 (D. Md. 1997) (describing Christmas as a highly
secularized
holiday) aff'd
190 F.3d 259 (4th Cir. 1999).
The various opinions expressed by the Supreme Court justices in Lynch
illustrate that even though the justices have very different beliefs about the
constitutionality of some state activities held in association with Christmas,
they have not questioned the constitutionality of the legal public
holiday itself. In Lynch, the Supreme Court concluded that the city of Pawtucket,
Rhode Island, could include a
religious creche in its public Christmas
display along with other
secular figures without violating the
Establishment Clause. See
465 U.S. 668 at 687, 104 S. Ct. 1355, 79 L. Ed. 2d 604. In her concurrence, Justice O'Connor stated that Christmas
"has very strong
[**24]
secular components and traditions."
465 U.S. at 692 (O'Connor, J., concurring). Even the dissenting justices, who objected to the
inclusion of the creche, agreed that
"the Christmas
holiday in our national culture contains both
secular and
sectarian elements."
Id. at 709 (Brennan, J., dissenting,
joined by Marshall, Blackmun, and Stevens, JJ.).
The dissenting justices concluded that the
Establishment Clause is not offended when justices do
"no more than accommodate the calendar of public activities to the plain fact
that many Americans will expect on that day to spend time visiting with their
families, attending
religious services, and perhaps enjoying some respite from pre-holiday activities." See
id. at 710 (Brennan, J., dissenting,
joined by Marshall, Blackmun, and Stevens, JJ.). The Supreme Court reached similar
conclusions in other cases. See e.g.,
County of Allegheny, 492 U.S. at 611-12 ("Confining the government's own
celebration of Christmas to the
holiday's
[*833]
secular aspects... simply permits the government to acknowledge the
holiday without expressing an
allegiance to Christian beliefs....");
Zorach v. Clauson, 343 U.S. 306, 313-14, 96 L. Ed. 954, 72 S. Ct. 679 (1952)
[**25] ("When the state... cooperates with
religious authorities by adjusting the schedule of public events to
sectarian needs, it follows the best of our traditions.").
The conclusion that Christmas has a
secular purpose is also supported by cases analyzing the constitutionality of school, office,
and courthouse closings on other days traditionally celebrated as holy days by
Christians. Four circuit courts have concluded that cities may close public
functions on the Friday before Easter, which Christians
celebrate as Good Friday, the day Jesus Christ was crucified. See
Koenick v. Felton, 190 F.3d 259 (4th Cir. 1999) (creating a public school
holiday from the Friday before Easter through the following Monday);
Bridenbaugh v. O'Bannon, 185 F.3d 796 (7th Cir. 1999) (allowing Indiana state employees to have a day off with pay);
Granzeier, 173 F.3d at 576 (closing of state and county offices and courts);
Cammack v. Waihee, 932 F.2d 765 (9th Cir. 1991) (declaring Good Friday to be a legal
holiday).
In these Good Friday decisions, the courts recognized the secularization of the
Christmas
holiday. See
Koenick, 973 F. Supp. at 525
[**26] (describing Christmas as a highly
secularized
holiday) aff'd
190 F.3d 259 (4th Cir. 1999); cf.
Granzeier, 173 F.3d at 575 (stating that the Christmas
holiday is established for the
convenience of citizens and individual motivations may be a mix of
secular and
religious considerations). Circuit Judge Moore, in her dissent in Granzeier, implied
that she would uphold the constitutionality of a public Christmas
celebration by stating that Christmas is now
secularized and easily distinguishable from Good Friday. See
173 F.3d at 580 (Moore, J., dissenting); see also,
Cammack, 932 F.2d at 789 (Nelson J., dissenting).
Interestingly, the cases opposing public recognition of
religious
holidays do not dispute the constitutionality of the Christmas legal public
holiday..
"Some
holidays that are
religious, even
sectarian, in origin, such as Christmas and Thanksgiving, have so far lost their
religious connotation in the eyes of the general public... [that they] have only a
trivial effect in promoting
religion." See
Metzl v. Leininger, 57 F.3d 618, 620 (7th Cir. 1995). The Metzl court held that a Good
[**27] Friday school closing law was unconstitutional, but implied that its ruling
might change if the state articulated a
secular, rather than
religious, reason for the closing. See
id. at 623-24. Not surprisingly then, the Seventh Circuit upheld an Indiana law which gave
state employees a paid
holiday for Good Friday when the state presented evidence that the day off was
recognized in order to create a
holiday during a time period where there otherwise would be four months without a
holiday. See
Bridenbaugh, 185 F.3d at 799.
Similarly, the District of Columbia Circuit reversed and remanded a district
court opinion dismissing a complaint which alleged that the closing of a public
library on Easter violated the
Establishment Clause. See
Bonham v. District of Columbia Library Admin., 300 U.S. App. D.C. 370, 989 F.2d 1242, 1245 (D.C. Cir. 1993). The Bonham court stated that the plaintiff should have a chance to prove that
Easter had not
"acquired the significant
secular meaning and traditions" that Christmas has acquired. See
989 F.2d at 1245. The appellate court chastised the district court for its categorical
proposition that public buildings could
[**28] be closed on all public
holidays, but it did not question the validity of Christmas closings. See id.
2. Second Prong--Endorsement
The issue under the Sixth Circuit's modified version of the Lemon test effects
prong is whether a reasonable
observer would think that the federal government is
endorsing
religion by proclaiming Christmas Day to be a legal public
holiday. See
Grand Rapids, 980 F.2d at 1543-44. The
[*834] Court must find that the government does not
impermissibly endorse
religion in general or Christianity in particular by recognizing Christmas Day. An
examination of Granzeier is instructive. The court noted in Granzeier that many
details of our calendar system have
religious roots-for example, the names of days of the week come from Roman and Norsemen
deities and the year is calculated by reference to events from the Christian
religion--yet are not violative of the
Establishment Clause. See
173 F.3d at 575. The court next mentioned in the same discussion that the Christmas
holiday was established for the
convenience of its citizens. See id. When the court then concluded that Good Friday
closings are not an
endorsement
[**29] of
religion, this Court must conclude the same in reference to Christmas.
"So long as the finding can be made that there is a significant
secular reason for closing [county government buildings] on any particular date,...
the fact that the closing is also convenient for persons of a particular faith
does not render the closing unconstitutional."
Id. at 576.
Ganulin argues that the recognition of Christmas as a national public
holiday pursuant to
§ 6103 has the primary effect of
endorsing
sectarian Christian beliefs. The Supreme Court's opinion in County of Allegheny
implicitly rejects that argument when it explains why the government cannot
celebrate Christmas as a
religious
holiday:
Celebrating Christmas as a
religious, as opposed to
secular,
holiday, necessarily entails professing, proclaiming, or believing that Jesus of
Nazareth, born in a manger in Bethlehem, is the Christ, the Messiah. If the
government
celebrates Christmas as a
religious
holiday (for example, by issuing an official proclamation saying:
"We rejoice in the glory of Christ's birth!"), it means that the government really is
declaring Jesus to be the Messiah, a specifically Christian
[**30] belief. In contrast, confining the government's own
celebration of Christmas to the
holiday's
secular aspects does not favor the
religious beliefs of nonChristians over that of Christians. Rather, it simply permits
the government to acknowledge the
holiday without expressing an
allegiance to Christian beliefs, an
allegiance that would truly favor Christians over non-Christians.
492 U.S. at 611-12. Similarly, the Supreme Court in Lynch stated that the inclusion of a nativity
scene in a public Christmas
display containing several other more
secularized figurines had only an
"indirect, remote, and incidental" benefit to
"one faith or
religion or to all
religions."
465 U.S. at 683; see also
Koenick, 190 F.3d at 267 (concluding that a school
holiday on Good Friday does not include a facial denominational preference). It
necessarily follows that the legal public
holiday of Christmas does not have the primary effect of
endorsing Christianity in particular or
religion in general. n3
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Ganulin argues that the court should be applying a strict scrutiny analysis
because
§ 6103 grants a
sectarian preference to Christians over non-Christians and
religion over nonreligion. In
Larson v. Valente, 456 U.S. 228, 72 L. Ed. 2d 33, 102 S. Ct. 1673 (1982), the Supreme Court stated that where a statute clearly grants a denominational
preference, it
"must be invalidated unless it is justified by a compelling interest, and unless
it is closely fitted to further that interest."
Id. at 247 (internal citations omitted). The Court's conclusion that
§ 6103 does not promote a
sectarian preference forecloses Ganulin's argument that this Court should be applying
this strict scrutiny test to determine the constitutionality of
§ 6103. Further, if true, Ganulin's argument concerning Christmas applies with
equal force to closing public buildings for Good Friday. The Sixth Circuit,
however, applied the Lemon test, not strict scrutiny analysis, to the Good
Friday issue in Granzeier. See
173 F.3d at 572-76.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**31]
By giving federal employees a paid vacation day on Christmas, the government is
doing no more than recognizing the
cultural significance of the
holiday. See
County of Allegheny, 492 U.S. at 601 ("The government may acknowledge
[*835] Christmas as a
cultural phenomenon... The fact that
§ 6103 may accommodate Christians who wish to engage in
religious
celebrations of Jesus Christ's birth does not mean that the
holiday has an impermissible
religious effect. The Supreme Court forcefully has stated
"when the state...cooperates with
religious authorities by adjusting the schedule of public events to
sectarian needs, it follows the best of our traditions."
Zorach, 343 U.S. at 313-14; cf.
Marsh, 463 U.S. at 812 (Brennan, J., dissenting,
joined by Marshall, J.) (recognizing that government
"may to some extent act to facilitate the opportunity of individuals to practice
their
religion," in an opinion opposing the right of a state legislature to open session with
prayer). Moreover, Section 6103 is analogous to Sunday Closing Laws upheld in
McGowan v. Maryland, 366 U.S. 420, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961), in that both are recognized to have
religious origins
[**32] but not an impermissible
religious effect. The Supreme Court's conclusion in McGowan has relevance in the case at
bar:
"To say that the States cannot prescribe Sunday as a day of rest for these [secular] purposes solely because centuries ago such laws had their genesis in
religion would give a constitutional interpretation of hostility to the public welfare
rather than one of mere separation of
church and State."
366 U.S. at 445.
3. Third Prong--Entanglement
The Supreme Court has stated that
entanglement
"is a question of kind and degree."
Lynch, 465 U.S. at 684. The Court has recognized that interaction between
church and state is
"inevitable" and therefore,
entanglement must be
"excessive" to conclude that the
Establishment Clause is violated.
Agostini v. Felton, 521 U.S. 203, 233, 138 L. Ed. 2d 391, 117 S. Ct. 1997 (1997). Ganulin argues that
§ 6103 creates excessive
entanglement because ensuring that the legal public
holiday and the accompanying vacation day for federal employees furthers only
secular purposes would require pervasive monitoring. He further argues that the
government and
religion become
"inextricably intertwined" resulting in the
"ultimate"
[**33] excessive
entanglement. Plaintiff Richard Ganulin's Memorandum in Opposition to the Government's
Motion to Dismiss and the Intervenor's Motion to Dismiss, p.40.
The Court finds Ganulin's arguments to be conclusory and inaccurate. Ganulin
fails to give any concrete examples of the type of monitoring that is or would
be required, nor can the Court think of any. The government's role is limited
to
declaring December 25th to be a legal public
holiday. How federal employees and other citizens choose to observe the
holiday is their own concern. The government has no right to or interest in monitoring
its citizens to determine if they engage in
religious
celebrations on Christmas. Section 6103 does not require government participation in
religious activities nor does it provide funding for
religious activities. See
Koenick, 973 F. Supp. at 527 (stating the same in regards to allowing public school
holiday on the Friday before Easter). In an analogous situation, the Sixth Circuit
found that government officials are not required to make
religious determinations and there is no
entanglement when government officials declare that courthouses and offices will be closed
on the
[**34] Good Friday, the Friday before Easter. See
Granzeier, 173 F.3d at 574. The same conclusion applies to the declaration of Christmas as a legal public
holiday.
4. Conclusion on the
Establishment Clause
The Court holds that under Sixth Circuit and Supreme Court precedent the
establishment of Christmas Day as a legal public
holiday does not violate the
Establishment Clause because it has a valid
secular purpose, it does not have the effect of
endorsing
religion in general or Christianity
[*836] in particular, and it does not
impermissibly cause excessive
entanglement between
church and state. n4
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4
Defendant-Intervenors also sought the Court to uphold the constitutionality of
§ 6103 based upon the fabric of society test articulated in Marsh. In Marsh, the
Supreme Court upheld the practice of opening legislative sessions with
prayer:
"In light of the unambiguous and unbroken history of more than 200 years, there
can be no doubt that the practice of opening legislative sessions with
prayer has become a part of the fabric of our society."
463 U.S. at 792. Due to the Court's analysis under the modified Lemon test and the fact that
the Sixth Circuit has applied the Marsh precedent only in regards to other
cases involving public
prayer and public invocation, the Court declines to analyze
§ 6103 under Marsh.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**35]
C. Freedom of Association
Ganulin also argues that
5 U.S.C. § 6103 is unconstitutional because it violates his right to freedom of association.
The freedom of association is not enumerated in the Constitution, but arises as
a necessary concomitant to the Bill of Right's protection of individual
liberty. The Supreme Court has explained the protections afforded by the
freedom of association as follows:
Our decisions have referred to constitutionally protected
"freedom of association" in two distinct senses. In one line of decisions, the Court has concluded
choices to enter into and maintain certain intimate human relationships must be
secured against undue intrusion by the State because of the role of such
relationships in safeguarding the individual freedom that is central to our
constitutional scheme. In this respect, freedom of association receives
protection as a fundamental element of personal liberty. In another set of
decisions, the Court has recognized a right to associate for the purpose of
engaging in those activities protected by the First Amendment-speech, assembly,
petition for the redress of grievances, and the exercise of
religion.
[**36] The Constitution guarantees freedom of association of this kind as an
indispensable means of preserving other individual liberties.
Roberts v. United States Jaycees, 468 U.S. 609, 617-18, 82 L. Ed. 2d 462, 104 S. Ct. 3244 (1984) (holding that a state discrimination law which had the effect of requiring the
Jaycees to admit women did not violate the freedom of association). The Supreme
Court added that the freedom to associate
"plainly presupposes a freedom not to associate."
Id. at 623.
Ganulin argues that
§ 6103 impinges on his associational rights because
"freedom of association includes the right to have the government not impose
Christian
religious or Christian
cultural beliefs on him." Amended Complaint (doc. # 18), P 32. He argues that the government's
celebration of Christmas as a legal public
holiday classifies Christian
religious and
cultural beliefs in a preferred way that impinges on his fundamental rights to believe
and associate as a non-Christian. He objects to having the
holiday imposed upon him because he alleges that the Christian ideas that underlie the
holiday are the kind of ideas that underlie a person's identity and existence. He then
argues that because
[**37]
§ 6103 impinges upon his rights, the statute can only be upheld if it can
survive strict scrutiny analysis.
"Infringements on [the right to associate] may be justified by regulations
adopted to serve compelling interests, unrelated to the suppression of ideas,
that cannot be achieved through means significantly less restrictive of
associational freedoms."
Roberts, 468 U.S. at 623. Ganulin concludes that the government has no compelling interest.
The error in Ganulin's argument is that his assertions do not state a claim
under either type of associational protection described by the Court in
Roberts. The first type of claim recognizes that the Bill of Rights
"must afford the formation and preservation of certain kinds of highly personal
relationships a substantial measure
[*837] of sanctuary from unjustified interference by the State."
Id. at 618. The Supreme Court gives as examples of protected relationships: marriage (
Zablocki v. Redhail, 434 U.S. 374, 383-86, 54 L. Ed. 2d 618, 98 S. Ct. 673 (1978)), childbirth (
Carey v. Population Servs. Int'l, 431 U.S. 678, 684-86, 52 L. Ed. 2d 675, 97 S. Ct. 2010 (1977)), and cohabitation with relatives (
Moore v. East Cleveland, 431 U.S. 494, 503-04, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1997)
[**38] (plurality opinion)). See id. The second type of protected associations
correspond to the
First Amendment and give a right to
"associate with others in pursuit of a wide variety of political, social,
economic, educational,
religious, and
cultural ends."
468 U.S. at 622.
Ganulin does not, and cannot, allege that the government imposes upon him or
his family participation with others in
religious services and
celebrations. His argument, rather, is that his free association rights are being violated
by imposing Christian beliefs on him and his family. In this same vein he
argues that it is inconsistent for the government to assert that Christmas is a
highly
secularized
holiday and for the Intervenors to state that they intend to attend
religious services on Christmas day.
The Court does not agree with Ganulin's arguments. Ganulin and his family have
the freedom to
celebrate, or not
celebrate, the
religious and the
secular aspects of the
holiday as they see fit. The Court simply does not believe that
declaring Christmas to be a legal public
holiday
impermissibly imposes Christian beliefs on non-adherents in a way that violates the right to
freedom of association. Moreover, the Court
[**39] finds no inconsistency in the Defendant's and
Defendant-Intervenor' s arguments. The Sixth Circuit has stated in reference to Christmas Day and
Thanksgiving Day that
"holidays are established for the
convenience of its citizens, and that
convenience often is caused by individual motivations that may be a mix of
secular and
religious."
Granzeier, 173 F.3d at 575. The government can establish legal public
holidays for
secular reasons and its citizens can choose to
celebrate the
holidays in a
religious manner without contradiction.
Therefore, the Court holds that Ganulin cannot establish as a
matter of law that the enactment of Christmas Day as a legal public
holiday violates his right to freedom of association.
D.
Equal Protection
Ganulin' s last claim is that the
establishment of Christmas Day as a legal public
holiday violates his right to
equal protection under the law. Laws that neither burden a fundamental right nor target a
suspect class are upheld under
equal protection analysis so long as they bear a rational relationship to some legitimate end.
See
Romer v. Evans, 517 U.S. 620, 631, 134 L. Ed. 2d 855, 116 S. Ct. 1620 (1996). Ganulin has asserted his status as a citizen
[**40] and a taxpayer in his Amended Complaint. He is not a member of a suspect class
to the extent that
5 U.S.C. § 6103 can be said to target him. Therefore, unless the Court finds that the law
impinges on his fundamental rights of freedom of association or to free
exercise of
religion--a claim not asserted by Ganulin in his Amended Complaint or in his
briefs--then
§ 6103 will be upheld if it bears a rational relationship to a legitimate end.
The Court has already held that Ganulin's fundamental right of freedom of
association is not impinged by
§ 6103. Further, the Court has found legitimate
secular purposes for establishing Christmas as a legal public
holiday. To again quote the dissenting judges in a case upholding the inclusion of a
creche in a public
holiday
display:
"When government decides to recognize Christmas day as a public
holiday, it does no more than accommodate the calendar of public activities to the
plain fact that many Americans will expect on that day to spend time visiting
with their families, attending
religious services, and perhaps enjoying
[*838] some respite from pre-holiday activities." See
Lynch, 465 U.S. at 710 (Brennan,
[**41] J. dissenting,
joined by Marshall, Blackmun, and Stevens, JJ.); see also
County of Allegheny, 492 U.S. at 611-12 ("Confining the government's own
celebration of Christmas to the
holiday's
secular aspects...simply permits the government to acknowledge the
holiday without expressing an
allegiance to Christian beliefs.");
Zorach, 343 U.S. at 313-14 ("When the state...cooperates with
religious authorities by adjusting the schedule of public events to
sectarian needs, it follows the best of our traditions.").
Accordingly, the Court holds the
establishment of Christmas Day as a legal public
holiday does not violate fundamental rights nor discriminate based upon suspect
criterion. The United States, moreover, has a rational,
secular reason for the
establishment of the
holiday. The Court, therefore, holds that Ganulin cannot establish as a
matter of law that
5 U.S.C. § 6103 violates his rights to
equal protection under the law.
IV. CONCLUSION
The Court finds as a
matter of law that on the facts alleged Plaintiff Ganulin cannot support his claims that the
establishment of Christmas Day as a legal public
holiday violates the
[**42]
Establishment Clause or his rights to freedom of association and
equal protection under the United States Constitution. Therefore, for the reasons explained
above, the Defendant's Motion to Dismiss (doc. # 21) and the
Defendant-Intervenors' Motion to Dismiss (doc. # 22) are hereby
GRANTED.
IT IS SO ORDERED.
Susan J. Dlott
United States District Judge
JUDGMENT IN A CIVIL CASE
Decision by Court: This action came to trial or hearing before the Court. The
issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED
...the Court GRANTS Defendant's Motions to Dismis (Docs. 21 and 22).
December 7, 1999