dissenting.
With all respect, I conclude that the judgment appealed from should be reversed.
I have no quarrel with the proposition that the State of Indiana is free to designate a holiday in March or April in order to provide a holiday for its employees partway through the four-month period between Martin Luther King, Jr. Day, in January, and Memorial Day, in May. Further, it is free to designate a Friday or Monday in order to extend a weekend to three days. Had it designated, for example, the first Friday in April, the fact that the day would be Good Friday in some years could hardly make the designation a violation of the Establishment Clause of the First Amendment. The real issue here is whether the State’s choice of Good Friday as the spring holiday in every year is supportable under the Lemon test.
We should not lose sight of the fact that the judgment appealed from rests upon a grant of summary judgment, and not a trial. Review is de novo, without deference to conclusions reached by the magistrate judge, even where labeled a finding.
The first element of the Lemon test, is whether the selection of Good Friday as the spring holiday, beginning a three-day weekend, has a secular purpose. The state’s decision to afford its employees a long weekend after Martin Luther King, Jr. Day and before Memorial Day is surely secular in nature, but the Establishment Clause question arises because the state has selected Good Friday, for many people a day of religious observance, the changing date of which is determined by purely religious tradition. The burden of pre*803senting evidence of justification rests on the state. Metzl v. Leininger, 57 F.3d 618, 622 (7th Cir.1995).
In my view the evidence offered by the State would not support a finding that the purpose of selecting Good Friday, rather than a specific Friday or Monday in spring, was secular. The parties stipulated that there is no legislative history showing why Good Friday was made a legal holiday. I note, however, that the text of the statute characterizes Good Friday as “a movable feast day.” Although “feast day” seems inappropriate to the events believed by Christians to have occurred on the first Good Friday, those who put these words in the statute in 1941 must have had in mind the religious character of Good Friday.
The parties also agreed that “The State has specified that the sole current secular purpose for the Good Friday holiday is that it provides a Spring holiday for State employees.” The only testimony indicating why Good Friday could have been chosen was that of Mr. Beesley, the Governor’s designee, as follows, “I think Good Friday works out well, because as I say, it’s a natural travel time for a lot of us. But any day could have been picked for that purpose. And it does fall, as I said, I think, in the response to interrogatories, happily about halfway between Martin Luther King’s Birthday and Memorial Day.”
There was evidence that “Nationwide, 35% of employers give the day off to their employees on Good Friday. (1997 Survey). In the East Central region [composed of Indiana and eight other states], that number climbs to 44%.... In the East Central region, 34% of government employers designate Good Friday as a holiday as do 52% of education employers.... [0]f the 293 school districts in the state, 89 closed on Good Friday.” Based on this evidence, the magistrate judge concluded that “Good Friday is the logical choice for a spring holiday, because some state employees undoubtedly would seek to take that day off because their children and/or spouses have a school holiday or a day off work.” There was also evidence that in the Indianapolis area, where most state employees presumably reside, “State and City-County offices, county courts and stock markets were closed on Good Friday [1997]. However, federal offices, most schools, stores and banks were open.” With all respect, I do not think the equivocal Beesley testimony about travel time and the statistical evidence about school and business holidays in a nine-state region fulfilled the State’s burden of proof that if there were no Good Friday holiday, demands by employees for leave on that day would create a significant problem for state government. See Metzl, 57 F.3d at 622. Indeed the State says: “evidence of business necessity was not offered as a reason for Indiana’s holiday simply because that is not why Indiana has a Good Friday holiday.” Brief of Appellee, p. 16. Moreover the record gives no reason to believe that employees who desire to travel on the Easter weekend are not motivated by the religious significance of Easter to them.
The second element of the Lemon test is that the principal or primary effect of choosing Good Friday for the spring holiday neither advances nor inhibits religion. Almost by definition the choice of Good Friday advances the Christian religion (except, perhaps for those Christians who are adherents of the Eastern Church, whose tradition often puts Holy Friday on a different date). Those employees who do not observe Good Friday and who wish to take time off on a different day of religious observance must make a request and use a vacation, compensatory, or personal day or leave without pay. Thus their making that choice imposes a cost. There are circumstances under which the request may not be granted. The State’s choice of Good Friday fails this element of the Lemon test as well. “[T]he First Amendment does not allow a state to make it easier for adherents of one faith to practice their religion than for adherents of another faith to prac*804tice their religion unless there is a secular justification for the difference in treatment.” Metzl, 57 F.3d at 621.
The majority relies on a suggestion in Metzl that
Had Illinois made a forthright official announcement that the public schools shall be closed on the Friday before Easter in order to give students and teachers a three-day spring weekend, rather than to commemorate the crucifixion of Jesus Christ, we might have a different case.
Metzl, 57 F.3d at 623. “[M]ight have a different case” is scarcely a definitive ruling, and at best would be dictum. In any event, there is no “forthright official announcement” by Indiana.
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 government measures to promote them, as by making them holidays or even by having the government itself celebrate them, have only a trivial effect in promoting religion. Even Easter is becoming gradually secularized;....
Metzl, 57 F.3d at 620. See Lynch v. Donnelly, 465 U.S. 668, 681, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). The Supreme Court found a sufficient secular purpose in a state’s choice of Sunday as a required day of rest. McGowan v. Maryland, 366 U.S. 420, 452, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). Good Friday, however, does not have the relevant attributes of Sundays, Christmas and Thanksgiving.
It is a day of solemn religious observance, and nothing else, for believing Christians, and no one else. Unitarians, Jews, Muslims, Buddhists, atheists— there is nothing in Good Friday for them, as there is in the other holidays we have mentioned despite the Christian origins of those holidays.
Metzl, 57 F.3d at 620.
Even if, contrary to my view, the State’s evidence could support a finding that the State had a secular purpose in maintaining the Good Friday holiday, and that it did not advance the Christian religion, the character of Good Friday itself and the affidavit of a professor of theology negating secularization of Good Friday are conflicting evidence which would pose a genuine issue of fact, and the result should then have been to deny both cross motions for summary judgment, and proceed to trial.
With all respect, however, I conclude that the evidence is insufficient to establish a secular purpose, that the judgment should be reversed, the plaintiffs motion for summary judgment granted, and an injunction issued.