A lot of people don't celebrate Christmas. Should the government declare this religious commemoration to be an official holiday? Cincinnati attorney Richard Ganulin says No, and has gone to court to make his case.

ichard Ganulin, the Cincinnati attorney who objects to the federal government declaring Christmas an official holiday, has filed a a 60-page response in the latest round of his lawsuit which many says tests the limits of the First Amendment. In 1998, Mr. Ganulin asked U.S. District Judge Susan J. Dlott to declare the holiday an unconstitutional establishment of religion. The suit has mushroomed from there in complexity, with the Christian Coalition, Beckett Fund for Religious Liberty and three federal employees entering the fray.

    Ganulin, an erudite 46-year old attorney, argues that the official Christmas holiday "creates a major symbolic link between the government and Christianity," as well as "an inducement and a facilitation of Christian worship and association ... by virtue of a paid holiday provided to all federal employees." He adds that the holiday is equally violative of equal protection and freedom association, and creates "special rights" for Christians.

    Challenging the constitutionality of Christmas is, well, something that many people -- including some separationists -- might consider Quixotic and futile, even a bit nutty. But Ganulin is no fringe lunatic. He was born in Brooklyn, raised in Cincinnati, and obtained his law degree from George Washington University. He emphasizes that his suit against the Christmas holiday involves his own time and resources, and does not interfere with his job as -- get this -- an assistant city solicitor for Cincinnati. Do business with the municipality and you might have Rich Ganulin reviewing your contract line by line.

    And Ganulin makes it clear that he does not want to "outlaw" Christmas for those who wish to celebrate. You can ditto that for killing Santa, banning trees, or making it illegal to put up Christmas decoration, or arresting the local mall Jolly St. Nick. What Richard Ganulin wants is a clear admission from the government that it shall not establish an official religious holiday. As for the millions of federal, state and local government workers who get Christmas off, Ganulin says that those wishing time away from work should be able to choose, or not choose, December 25 as they would any other vacation time.

    A lot of folks don't like Ganulin's claims about Christmas, though, or his lawsuit. Does the name "Scrooge" come to mind? William Donohue, President of the Catholic League for Religious and Civil Rights says that Mr. Ganulin is "mean spirited" and wants "to strip us of our cultural heritage." Ganulin says that is nonsense, and that he is merely trying to get the government to consistently apply the Establishment Clause, which prohibits the state from endorsing or promoting religion.

   The Beckett Fund for Religious Liberty has entered the case, with assistance to three federal employees who have challenged Ganulin's suit. They insist that they will lose a paid holiday, and that Christmas is an occasion for them to attend church and celebrate the season with their families. They have asked U.S. District Judge Diott to dismiss the case. In addition, Christian Coalition has contributed an amicus brief ("friend of the court") supporting dismissal as well.

    Last month, Ganulin responded with his 60-page memorandum. According to the Cincinnati Enquirer, partisans on either side of the issue could benefit by the enormous amount of information in this "encyclopedic memo" which Mr. Ganulin filed. The paper called it "a crash course on issues and legal precedents..."

   Ganulin's first amended complain ran to only eight pages. His new memorandum, though, is so exhaustive that it requires a Table of Contents, complete with Introduction and Conclusion. Among the points:

   ¶    Christmas Day -- December 25 -- is a Christian celebration.

   ¶    The Celebration of the Birth of Jesus of Nazareth is a Christian Celebration.

   ¶    The establishment of a national legal public holiday by Act of Congress communicates a powerful message to the citizenry of the nation.

   ¶    The Establishment Clause of the First Amendment to the Constitution of the United States prohibits Congress from discriminating on the basis of belief.

   Defenders of Christmas as a holiday, or even the inclusion of overt religious symbols on public property such as a Christian nativity scene, frequently argue that "Santa Claus" and other holiday trappings are secular in their nature and in their effect. Ganulin has done his homework, though, about the big jolly guy in the red suit. In a section titled:" The Celebration of the Annual Arrival of Santa Claus is a Christian Celebration," he notes:

"The etymology and evolution of 'Santa Claus" is also Christian. According toebster's Third New International Dictionary (G. & C. Merriam Co.), 'Santa Claus" is a modification of Sinterklaas which is an alternative to Sint Nikolaas (St. Nicholas). The Webster's Third New International Dictionary defines 'Santa Claus' as 'the religious and holiday spirit of Christmas personified.' Santa Claus, needless to say, is the legendary Christian figure who visits Christian households on the eve of the day Christians celebrate the birth of Jesus of Nazareth. Christmas Day -- December 25 also is the day Christians celebrate those visits from Santa Claus."

    In case you want to argue in court, or elsewhere, about what Ganulin says, come prepared. Ganulin doesn't even concede the Santa-argument, and in a footnote quotes from the book "What Does Being Jewish Mean? Read-Aloud Responses to Questions Jewish Children Ask About History, Culture and Religion."

"Why don't Jews believe in Jesus? The Torah teaches us that no prophet or teacher can arise and change the laws of the Torah. Jesus and his followers attempted to change the laws of the Torah. Therefore, he cannot be considered a leader of the Jewish people. Why don't we have Christmas trees? A Christmas tree is a religious symbol of Christmas, which is a Christian religious holiday. Jews have an obligation to practice only their own religion and not to observe the customs and practices of other religions."

   Forget the "commercialization" argument, too. Ganulin insists that those holiday mall decorations and the pre-Christmas day sales are "irrelevant to the establishment of Christmas Day on December 25" as a legal holiday. "The government has not offered any other independent legitimate governmental interest advanced by the statute establishing" that day." He dismisses government arguments that Christmas "has multiple legitimate secular purposes" as "dicta," opinions without legal force or substantiation.

    Ganulin says that he is concerned by the lack of attention government pays to 'the many millions of non-Christians. who have to work on their holy days and have to miss religious services and cannot celebrate the holy days with their families," something which, clearly, Christians celebrating on December 25 don't have to worry about.

   Ganulin also dismisses the arguments that Christmas is protected by the "Fabric of Society" or "Ceremonial Deism" exceptions to the First Amendment. One expression of this is the MARSH v. CHAMBERS CASE (1983), where the Supreme Court found so-called "ceremonial deism" which had an "unambiguous and unbroken history of more than 200 years," and where adults were not readily susceptible to "religious indoctrination" from peers. In MARSH, justices affirmed the constitutionality of state-paid legislative chaplains. Ganulin likewise challenges the contention that the December 25 holiday is not, at least in substantial part, a "holy sectarian event," and the arguments using ACLU v. CAPITOL SQUARE REVIEW & ADVISORY BOARD. In that case, the court upheld the state's use of the motto "With God All Things Are Possible" because it considered it to be theistic. Ganulin notes, "The Court's analysis is flawed to the extent that it disregards the equal status of non-theistic beliefs," but "It makes no difference to the case at bar, however, because the Court did invalidate sectarian theistic governmental message." From the perspective of the court, the motto "With God..." is substantially different -- at least in terms of favoring one religious belief over another -- than if the motto were to declare, "With Christ All Things Are Possible."

   For Ganulin, the official Christmas holiday renders any non-Christian as an "outsider" in the culture. It also "makes it more difficult for non-Christians to live in the United States in a way consistent with their beliefs and associations..." He adds that there is no "legitimate government interest" in having an official Christmas holiday, and that doing so on December 25 results in the excessive entanglement of church and state.

    On paper, at least, Ganulin's suit is compelling. He cites the Supreme Court's own decisions in decisions like COUNTY OF ALLEGHENY (1989) that concerned the display of religious symbols on government property at Christmas time, where the high court did acknowledge that "Christmas Day is the day when Christians celebrate the birth of Jesus of Nazareth whom they believe to be their Messiah." He also musters a full paragraph from the same decision:

"Whatever else the Establishment Claus may mean (and we have held it to mean no official preference even for religion over nonreligion...), it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions)... There have been breaches of this command throughout the Nation's history, but they cannot diminish in any way the force of the command."

    Richard Ganulin's suit is a potential cultural bomb shell. It would force government to acknowledge the very real fact that America is, increasingly, become more diverse and pluralistic in its demographic and religious make-up. Along with outspoken Atheism, there is an influx of new immigrants bringing with them religious beliefs other than Christianity. These include Islam, Hinduism and Buddhism. The argument that America is a "Christian nation" or that the majority of its people are Christian -- or even deeply religious-- remains suspect as well. As for Christmas itself, it has a checkered history of sorts. Many colonial Americans did not celebrate the holiday, and in places like Massachusetts, it was actually illegal to acknowledge Christmas from 1659 to 1681. In "The Battle For Christmas," historian Stephen Nissenbaum cited the recollection of one early New Englander who described December 25, 1850 in Worcester, Massachusetts. "The courts were in session on that day, the markets were open, and I doubt if there had ever been a religious service on Christmas Day, unless it were Sunday..."

    Even more obscure is the historical record on Christmas. The early Christian church did not officially decide to celebrate the alleged birth of their messiah on December 25 until the fourth century, grafting on to their own religion the pagan traditions of Winter Solstice and Saturnalia. Indeed, the American Puritans rejected December 25 as a holy time, considering it heathen and pagan.

    It may be a long-fought battle, though, to overcome modern day biases and perceptions about Christmas. Any victory Mr. Ganulin achieves in the court system would have even wider-ranging effects that the historic school prayer decisions of the early 1960s; then, prayer or Bible verse recitation in public schools was not universal, or in some areas even widespread. Still, the American people have yet to reconcile themselves to those court rulings. Christmas for many Americans still remains an institution.

    Even so, Ganulin is not out to abolish the Christmas season. Government employees would presumably be permitted to opt out of the workday, and the secular trapping of the December 25 holiday would probably linger and even thrive. Just as Christians grafted on to the Winter Solstice celebrations of pagan Europe their own interpretation of the season, the same is already happening in America. Numerous groups celebrate the solstice today, and some blacks mark the Kwanza holiday at this approximate time of year. Changing the status of Christmas may be more difficult within the legal system. Should he achieve any legal victories in the court, though, Richard Ganulin will have already won a victory in getting the country to think differently about the official Christmas holiday.

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