Friday, December 14, 2012

The Great "Is Christmas Constitutional?" Debate - COTW #122

About this time of year, I like to revisit Ganulin v. U.S., 71 F. Supp. 2d 824 (S.D. Ohio 1999)(opinion here). The Court held that the federal holiday for Christmas did not violate the Establishment Clause of the First Amendment of the United States Constitution. I have covered this case in past years: Is a Christmas Federal Holiday Constitutional? and Christmas and the Constitution. Those posts have generated some insightful comments and lively debate, so check 'em out.

I continue to believe that Ganulin got it right. Some critics of my past posts decry the holiday as "majoritarian." Well, yeah - we incorporate democracy into our government in a number of ways. That alone, is insufficient to make the holiday unconstitutional. The issue is whether the holiday violates the establishment clause.

The Court actually relies on the majoritarian aspect of the holiday as part of its rationale. The Court is not establishing a religious holiday, it is merely recognizing the "public calendar" and the fact that (figuratively) nobody works on Christmas.
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 some respite from pre-holiday activities.
I think of it as akin to having Sundays off. Sure, Sunday is often considered the Sabbath and many people attend religious services - but at this point, it's just part of the public calendar. Offices are open Monday to Friday and we get Saturday and Sunday off.

For me, the game-winner is that the holiday requires absolutely nothing of employees but that they take a day off. They get the day off. That's it. They can do whatever they want. Yes, they can go to mass . . . or not. The government does not indicate that Christianity is "right" or that Jesus Christ is the son of God or take any religious position.

I'm sure there's no shortage of people ready to tell me I'm wrong though . . . so drop a comment! Let's make this the best "Is Christmas Constitutional?" debate ever!