by Randy Singer
“Sounds like a loser, Jazz. You really ought to withdraw.”
“I can’t, Mr. Payne. Not now.”
Pearson paused for a long time and Jasmine knew what was coming.
“Well, that’s a call you’ve got to make. I admire your tenacity, you know that. And you’ll have a great future at some law firm. But unfortunately, it won’t be with us. It wouldn’t be fair for me to bring you in here after this case. Half my partners would be gunning for you from day one. It’s hard enough to make partner when you come in with a clean slate. Under these circumstances, you wouldn’t stand a chance. And, Jazz, I like you too much to put you through that.”
Though she saw it coming, the words still hit hard. “I understand, Mr. Payne. Thanks for being a straight shooter with me.” Even as she spoke, Jasmine marveled at the great lawyer on the other end of the phone. He was revoking her job offer, but somehow he had her thanking him!
She heard a quick beep from his phone. “Jazz, I just got another call that I’ve got to take. Good luck on that appeal.”
“Thanks, Mr. Payne.”
“I’m sorry.”
“I know.”
She stared at the phone for several seconds before heading back into the library. First the WNBA and now New York City. But she didn’t have time to feel sorry for herself. She could host a pity party later. She had a deadline less than twenty-four hours away.
WEDNESDAY, DECEMBER 20
It came in an e-mail a few minutes after ten . . . and it came none too soon. Jasmine had to blink twice before she opened it, still punchy from getting only a few hours’ sleep on Tuesday night after none at all on Monday. She was in the midst of throwing her appellate brief together, a disjointed hodgepodge of ideas and cases that barely convinced her and certainly stood no chance of weathering the scrutiny of the Fourth Circuit. Despair had yielded to a grim determination to file something by the deadline, even if she would be embarrassed to attach her name to it.
She was in the library, hooked up to the school’s wireless Internet, when the e-mail message flashed on her screen. Like phone calls, she had been ignoring her e-mails, but this one drew her like a tropical oasis after two long days in the desert. The sender was Pearson Payne, but it might as well have been a direct delivery from heaven.
As you know, we require a fair amount of pro bono work from our associates at Gold, Franks. And since we really aren’t that busy right now, I asked a few of our best young guns to take a stab at drafting your appellate brief last night. Hope this helps. By the way, Scooter says hi.
Merry Christmas, Pearson Payne
Adrenaline pumping, Jasmine double-clicked on the Word document. It was a twenty-five-page brief, properly formatted and edited to comply precisely with Fourth Circuit guidelines. The signature page contained a line for both Jasmine and Arginot. She wanted to kiss the laptop.
She skimmed past the index of authorities cited—lots of impressive-looking case law—and began reading.
Issue Presented: Can a federal judge rule Christmas unconstitutional?
Summary of Argument: In a prior case upholding the right of a city to display a manger scene, the Supreme Court noted that the First Amendment does not require total separation of church and state. The government’s job is to accommodate religion, not eradicate it. “We are a religious people whose institutions presuppose a Supreme Being,” the Court reminded us, quoting language from one of its own prior opinions upholding government-paid chaplains.
Our history is replete with references to our religious history and traditions: our national motto “in God we trust,” the Pledge of Allegiance’s “one nation under God,” our national holidays, and the oath taken by every witness sworn in by our federal courts—“so help me God.” As Justice Douglas once observed, accommodation toward all faiths, and hostility toward none, has honored “the best of our traditions” and “[respected] the religious nature of our people.”
The issue here is whether a single federal judge can ignore centuries of tradition, along with a controlling opinion of the United States Supreme Court, and declare illegal a pivotal part of a time-honored national holiday. If the manger scene is illegal, can the Christmas holiday itself be far behind? Let’s not pretend. Christmas is by its very nature religious, commemorating the birth of Jesus Christ, the central historical figure of the Christian faith. Under our Constitution, there’s nothing wrong with that. The First Amendment does not require that federal judges replace a religious society with an atheistic one.
This court should reverse the Order of the District Court declaring the manger scene unconstitutional and thereby invalidate Mr. Hammond’s contempt citation for failure to comply with that order. Our Republic has flourished despite Christmas celebrations and manger scenes for more than two hundred years. Or perhaps, in part, because of them.
It can certainly survive one more.
Jasmine stopped reading, inspired by the rhetoric. She had been so caught up in the details of the case that she had lost sight of the big picture. It took these New York lawyers, who probably didn’t even believe in Christmas, to show her what was really at stake. They were right. This wasn’t about how many secular symbols Possum put on its town square alongside a manger scene—the so-called three reindeer rule.
This case was about Christmas. Vote it up or down. That had to be her message to the Fourth Circuit. And it took an agnostic New York lawyer, who probably worked straight through Christmas himself, to reveal this to her.
She would finish reading the brief, sign it, deliver it, and get a few hours’ sleep. But first she typed an e-mail to Pearson Payne, thanking him for what he had done.
I wish there was some way I could repay you, she wrote.
A few minutes later, she received his reply.
There is. Win the case.
THURSDAY, DECEMBER 21
At precisely 2:00 p.m. on Thursday, the three judges assigned to the Hammond case took their seats high on the dais and the clerk called the Fourth Circuit Court of Appeals to order. Jasmine took her position behind the podium, spread her materials in front of her, and grabbed both sides of the lectern. Within minutes she was fielding questions like a seasoned veteran.
Justice Otis Clarence, an African American Bush appointee who attended law school after a brief stint in the NFL, dominated the early questions. He pitched softballs at Jasmine, his bias evident for all to see.
“Why isn’t this case controlled by Lynch?” he asked. “It seems to me that just because the city in Lynch had a few more secular decorations around the crèche doesn’t make its display substantially different from the one in Possum.”
“I agree, Justice Clarence. The Court in Lynch said that the crèche depicts the historical origins of a national holiday. As such, it served a secular purpose, not a religious one.”
Justice Langley Williams, a nerdy-looking judge well into his seventies, furrowed his brow. “Didn’t your client say it had a religious purpose?”
“He doesn’t speak for the town, Your Honor.”
“But he does attend Sunday school with the mayor. And they did pray for people who visited the crèche.”
“Which doesn’t magically turn the crèche into a prohibited religious symbol,” Jasmine shot back. She was trying hard not to sound defensive but was not entirely succeeding. “Mrs. Hammond is in that same Sunday school class and tells me that this week they’re praying for this court to make the right decision. I prayed with my client before this hearing. Those prayers don’t transform this court into an unconstitutionally religious body.”
Williams scowled but apparently couldn’t think of an immediate comeback. Jasmine had written him off anyway. A Carter appointee, Williams had never seen a religious symbol he didn’t want to expunge from public property.
Jasmine paused long enough to emphasize that she had silenced Williams, then went for another nail in the coffin. “Even if you do find the crèche to be a religious symbol, that doesn’t end the inquiry. The U.S. Supre
me Court has long upheld symbols of ceremonial deism and religious practices associated with the fabric of our society. It’s why we allow government-paid chaplains and religious holidays and In God We Trust on our currency. It’s why the Ten Commandments are still displayed as part of a frieze in the U.S. Supreme Court building. We are, after all, a nation steeped in religious tradition, and according to our own Declaration of Independence—”
Jasmine stopped midsentence when Justice Karen Sanders cleared her throat. Here was the swing vote—the elegant lady with the gray hair and wire-rimmed glasses sitting in the middle. “Counsel,” she began, and it seemed the entire courtroom held its breath, “isn’t all this talk about the secular or religious nature of the first two displays by the town irrelevant?”
Jasmine’s knees trembled. “In what way, Your Honor?”
“Well, Ms. Woodfaulk, unless I’m missing something here, your client’s not in jail because he took part in the manger scenes sponsored by the town. He’s in jail because he set up his own private manger scene later, without a permit, even after Judge Baker-Kline told him not to. So why are we spending all this time worrying about whether the town’s manger scene displays were constitutional or not?”
Jasmine felt her heart pounding in her ears. This was the swing vote! She couldn’t fumble this answer.
“The court’s order for Mr. Hammond to stay away from the town square was predicated on its prior rulings that the manger scene displays sponsored by the town were unconstitutional. If Judge Baker-Kline had ruled correctly in the first two hearings, there would have been no order barring Mr. Hammond from setting up a crèche in the town square and thus no contempt citation.”
Sanders screwed her face into a skeptical mask, unnerving Jasmine with the uncanny resemblance to Ichabod.
“If ifs and buts were candy and nuts, we’d all have a merry Christmas,” Williams said, but Jasmine ignored him. Go back to sleep, you old codger.
“Let me give you an analogy,” Sanders said. “Let’s assume that this is a domestic disturbance case. And let’s assume that Mrs. Hammond lied to a police officer to get a restraining order issued against Mr. Hammond. If Mr. Hammond violated that restraining order and attacked Mrs. Hammond, are you going to argue that he shouldn’t be held in contempt because the underlying restraining order was predicated on a lie?”
“No, Your Honor. But displaying a crèche on town property is hardly akin to beating your wife.”
Sanders turned her head slightly sideways like she wasn’t buying it.
Swing vote, Jasmine reminded herself. “It’s more like ‘fruit of the poisonous tree,’” Jasmine explained. “In a criminal case, if the police improperly obtain a confession and use that confession to obtain a search warrant, all the evidence from the search will be thrown out as ‘fruit of the poisonous tree.’ That’s what these contempt citations are—fruit of an improper ruling by a district court judge on the constitutionality of Operation Xmas Spirit.”
Sanders jotted some notes as Williams awoke from his half slumber and resumed his hostile questioning, starting with the case of Allegheny County v. ACLU, in which the Supreme Court ruled against a county that displayed a stand-alone crèche. When the red light came on nearly twenty minutes later, Jasmine was physically and emotionally drained.
She sat down at counsel table next to Theresa, who had made the trip to Richmond with her. “Good job,” Theresa whispered.
“Thanks,” Jasmine managed. But she was already critiquing herself. She didn’t think she had convinced Sanders, and Jasmine knew Williams wasn’t going her way. Plus, as she watched the smooth arguments by Harrod and the unflinching way he handled their questions, it didn’t exactly buoy her spirits.
When Harrod finally sat down, the clerk reminded Jasmine that she had reserved two minutes for rebuttal. She rose to the podium, feeling a bit like a weary fighter coming off the stool for one last round. She tried to ignore the intimidating stare of Williams.
She had made a few notes during Harrod’s argument but didn’t take them to the podium. She could feel this hearing slipping away, two of the three judges possibly leaning against her. She needed to do more than bicker about fruit of the poisonous tree and how many Frosty the Snowman displays it took to neutralize one crèche. Her competitive instincts told her it was time to throw down the gauntlet and remind the judges of the big picture, the policy arguments so beautifully laid out in the brief drafted by Scooter McCray and reviewed by Pearson Payne.
This was about the right to celebrate Christmas, pure and simple.
“Merry Christmas, Your Honors. Godspeed. God bless you. So help me God.” She paused, practically daring the justices to fire off a question. “This court is public property. Paid for by taxpayer dollars. Yet I’ve just invoked the name of the Almighty, heaven forbid, three separate times—four if you count Christ. Does Mr. Harrod believe we’ve just established a religion?”
Jasmine pulled her cross necklace from under the collar of her blouse for all to see. She was out on a limb now, might as well keep sawing. “I’m wearing this cross necklace. On government property, God forbid! And you’re allowing it! Isn’t that unconstitutional? And what about that silent prayer I said just before I stood up—should I be thrown in jail for that?” She turned and pointed toward a stunned Theresa. “And perhaps Mrs. Hammond is praying right now, wondering what in the world got into her bombastic lawyer—should she be held in contempt?”
Jasmine paused and pretended not to be bothered by the slack-jawed looks of the justices. “Where will it stop? How ironic that a country founded by those seeking religious freedom may now be telling its citizens freedom from religion will replace freedom of religion in the public square.
“Did the brave men who drafted the Constitution really intend to purge the public square of all things religious? Can anyone seriously argue that Washington, Jefferson, and Adams would have been offended by a crèche? Washington, who proclaimed the first day of national Thanksgiving by saying, ‘It is the duty of all nations to acknowledge the providence of Almighty God’? Jefferson, who referenced God four times in the Declaration of Independence? Adams, who said, ‘Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other’?”
Though Jasmine was just getting rolling, she noticed the red light pop on.
“Your time is up, Ms. Woodfaulk,” Justice Williams announced.
“God help us,” Jasmine replied.
The reporters scribbled the words with glee. Who could have hoped for a better headline?
Jasmine and Theresa listened to Christmas music on the way home from Richmond, reminding Jasmine of how little Christmas spirit she had. In a few days the season would be over. Never before had Christmas snuck up on her so quickly. So much had happened recently—the implosion of her New York job, law school exams, this case falling apart, and the basketball mess involving Ajori. She had no time for Christmas. How ironic!
Just when she determined that she would get into the Christmas mood if it killed her, the radio started playing “We Wish You a Merry Christmas” and her Christmas resolve evaporated. She could no longer stand this song with its evil chorus demanding figgy pudding. She could picture the mobs going from house to house, demanding their pudding and looting any puddingless homeowners. Though Jasmine hadn’t been in court the day Ichabod had taught her little history lesson about Christmas, she had reviewed the transcript in preparation for the appeal. She could imagine the smirk on Ichabod’s face as she grilled Mayor Frumpkin about the origins of the song. “We Wish You a Merry Christmas” was turning Jasmine into Scrooge.
She hit a button and changed the station. “’Tis the Season to Be Jolly.” That’s better, she thought. She even started singing along a little in her mind until . . . “Don we now our gay apparel.”
“You mind if we turn that off?” Jasmine asked.
“I was just thinking the same thing,” Theresa said.
Jasmine though
t about how much Christmas had changed for her. Growing up, she had loved the Christmas carols and traditions, the surprises under the tree, the “Merry Christmas” greetings from complete strangers in Possum, and the inevitable Christmas basketball tournaments. She had never understood those who said the Christmas season was one of the most stressful times of the year.
But losing her dad had changed a lot of that. Christmas traditions became searing reminders of the empty place at the table. Christmas tournaments weren’t the same without her dad stalking the sidelines. And now, on top of all that, she had a client sitting in jail through Christmas Day unless they pulled out a miracle win at the Fourth Circuit. Jasmine found herself secretly wishing that Christmas was over.
Four more days, she told herself. Four more days.
When Jasmine arrived home early Thursday evening, she was immediately bombarded with questions from her mom and Ajori. “You were all over TV,” Ajori announced. But Jasmine was tired of the case and all its pressures.
“Can we not talk about it?” she asked.
Bernice and Ajori exchanged a look. “Now you know how I feel after my games,” Ajori said.
“Whatever.”
Jasmine’s mom tried to change the subject by talking about Christmas things, but that didn’t work either. “I just can’t get in the Christmas spirit,” Jasmine confided. Saying it out loud actually sounded weird, like she had just confessed to some heinous crime or perhaps a psychotic delusion. What normal person couldn’t get in the Christmas spirit?
Fortunately, Ajori had a solution. “Me neither. We need to get our sorry butts to the mall!”