b'(Slip Opinion)\n\nReligious Seasonal Decorations in\nFederal Government Buildings\nThe Public Buildings Service of the General Services Administration may, consistent with\nfiscal law and the First Amendment\xe2\x80\x99s Establishment Clause, broaden its policy governing the purchase and display of seasonal decorations in the public spaces of federal\nproperties to allow for the display of religiously significant seasonal decorations that\nare reasonably calculated to improve employee morale.\nJanuary 15, 2021\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nGENERAL SERVICES ADMINISTRATION\nThe Public Buildings Service (\xe2\x80\x9cPBS\xe2\x80\x9d) of the General Services Administration (\xe2\x80\x9cGSA\xe2\x80\x9d) maintains a policy governing the purchase and display\nof seasonal decorations on federal properties under GSA\xe2\x80\x99s jurisdiction,\ncustody, or control. The current policy prohibits the purchase or display of\nany \xe2\x80\x9creligiously significant\xe2\x80\x9d seasonal decoration in the public spaces of\nsuch properties. The policy identifies certain \xe2\x80\x9creligiously significant\xe2\x80\x9d\nitems, such as a cross, menorah, or cr\xc3\xa8che, and identifies other items that\nare not \xe2\x80\x9creligiously significant,\xe2\x80\x9d such as a Christmas tree or Santa Claus.\nYour office has asked whether these restrictions are compelled by fiscal\nlaw or by the First Amendment\xe2\x80\x99s Establishment Clause, and whether there\nare circumstances in which GSA may or must permit the display of \xe2\x80\x9creligiously significant\xe2\x80\x9d decorations, whether purchased by GSA, other federal\nagencies, or federal employees. These questions implicate long-standing\nand long-accepted practices by which the federal government has recognized and accommodated the religious beliefs of the citizenry.\nWe conclude that GSA may, consistent with fiscal law and the First\nAmendment, broaden its policy to allow for the display of religiously\nsignificant seasonal decorations that are reasonably calculated to improve\nemployee morale. Under applicable fiscal law principles, a modified\npolicy may allow an agency broad discretion to choose decorations believed to contribute to a pleasant workplace atmosphere and to be consistent with agency objectives. Under the Establishment Clause, the\ndisplay of religiously significant seasonal decorations in federal public\nbuildings is entitled to \xe2\x80\x9ca strong presumption of constitutionality.\xe2\x80\x9d Am.\nLegion v. Am. Humanist Ass\xe2\x80\x99n, 139 S. Ct. 2067, 2085 (2019). Such dis1\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\nplays are in keeping with our government\xe2\x80\x99s tradition of accommodating\nreligious holidays and employing religious symbols. A display would\nviolate the Establishment Clause only if it evinced an actual tendency to\nestablish religion. Absent any indication, however, that the agency coerced religious belief or displayed a systematic preference for a religious\nfaith, the passive display of one or more religiously significant seasonal\ndecorations is unlikely to constitute an establishment of religion. A revised policy should also take care to leave government employees free to\nengage in religious expression in forums that have been created for speech\nin the workplace.\nI.\nPBS is primarily responsible for providing workspaces for federal\nagencies. We understand that the current seasonal-decorations policy\noriginated in a 1990 PBS administrative order, Expenditures for Seasonal\nDecorations, ADM Order No. 4200.1A (Dec. 14, 1990).1 The 1990 policy\nwas in turn based on a 1987 opinion by the General Accounting Office,\nnow the Government Accountability Office (\xe2\x80\x9cGAO\xe2\x80\x9d). 2\nIn the 1987 opinion, GAO reversed its then-held view that the purchase\nof seasonal decorations by federal agencies would violate federal appropriations law. GAO opined instead that the Department of State could\nlawfully reimburse an employee who purchased holiday decorations for\nthe U.S. embassy in Bonn, West Germany, including poinsettias, menorahs, and Christmas trees. See Department of State & General Services\nAdministration\xe2\x80\x94Seasonal Decorations, 67 Comp. Gen. 87 (1987) (\xe2\x80\x9cSeasonal Decorations\xe2\x80\x9d). GAO concluded that a decorative item could be a\nnecessary expense\xe2\x80\x94and thus a permissible use of funds\xe2\x80\x94when it \xe2\x80\x9cis\nLetter for Steven A. Engel, Assistant Attorney General, Office of Legal Counsel,\nfrom Jack St. John, General Counsel, General Services Administration (Mar. 12, 2020)\n(\xe2\x80\x9cOpinion Request\xe2\x80\x9d).\n2 The decisions of the Comptroller General\xe2\x80\x94who heads GAO\xe2\x80\x94are not binding on the\nExecutive Branch, because the Comptroller General is an agent of Congress. See Comptroller General\xe2\x80\x99s Authority to Relieve Disbursing and Certifying Officials from Liability,\n15 Op. O.L.C. 80, 82\xe2\x80\x9383 (1991); Bowsher v. Synar, 478 U.S. 714, 727\xe2\x80\x9332 (1986). We do,\nhowever, consider GAO opinions \xe2\x80\x9cuseful sources on appropriations matters.\xe2\x80\x9d Authority of\nthe Environmental Protection Agency to Hold Employees Liable for Negligent Loss,\nDamage, or Destruction of Government Personal Property, 32 Op. O.L.C. 79, 85 n.5\n(2008).\n1\n\n2\n\n\x0cReligious Seasonal Decorations in Federal Government Buildings\n\nconsistent with work-related objectives and the agency mission, and is not\nprimarily for the personal convenience or personal satisfaction of a government employee.\xe2\x80\x9d Id. at 88. The 1987 opinion distinguished the embassy\xe2\x80\x99s seasonal decorations from practices like \xe2\x80\x9csending Christmas cards on\nbehalf of certain agency officials at public expense,\xe2\x80\x9d which were \xe2\x80\x9cbasically individual good will gestures\xe2\x80\x9d and \xe2\x80\x9cnot part of a general effort to\nimprove the work environment.\xe2\x80\x9d Id. at 89 (citing Appropriations \xe2\x80\x94\nAvailability\xe2\x80\x94Christmas Cards, 64 Comp. Gen. 382 (1985)). GAO cautioned that the display of \xe2\x80\x9creligious symbols\xe2\x80\x9d might raise Establishment\nClause questions. Id. But it noted that the Supreme Court in Lynch v.\nDonnelly, 465 U.S. 668 (1984), had upheld a municipality\xe2\x80\x99s display of a\ncr\xc3\xa8che against constitutional challenge. 67 Comp Gen. at 89 & n.1. 3 GAO\ndid not conclude that the reimbursement request would be unlawful under\nthe Establishment Clause.\nConsistent with GAO\xe2\x80\x99s decision, the 1990 policy generally authorized\nthe purchase of seasonal decorations. ADM Order No. 4200.1A, at 1. But\nthe policy categorically prohibited the purchase of \xe2\x80\x9c[s]easonal decorations\nreligious in nature, such as menorah candelabra or Nativity cr\xc3\xa8ches.\xe2\x80\x9d 4 Id.\nIn 1993, PBS issued a superseding policy, Expenditures for Seasonal\nDecorations, OAD Order No. 4200.1 (Dec. 9, 1993), which maintained\nthat restriction on religious seasonal decorations.\nIn 2018, PBS promulgated its current seasonal-decorations policy. Seasonal Decorations, PBS Order No. 4200.2 (Dec. 26, 2018). The policy\nallows the use of federal funds to purchase seasonal decorations that are\n\xe2\x80\x9cnot religiously significant in nature\xe2\x80\x9d for display in public areas of federal\nbuildings. Id. at 2. The policy also includes a non-exclusive list of items\ndeemed not \xe2\x80\x9cprimarily\xe2\x80\x9d religiously significant, including a Christmas tree,\na dreidel, a wreath, a reindeer, tinsel, Santa Claus, a snowman, and poin-\n\n3 A cr\xc3\xa8che, or nativity scene, typically depicts the new-born Jesus Christ in the manger, sometimes surrounded by barn animals, the Magi, and the shepherds mentioned in the\ngospels. See Skoros v. City of New York, 437 F.3d 1, 4 n.1 (2d Cir. 2006).\n4 A Chanukah menorah is a candelabra with eight candles, plus a ninth used to light the\nothers, which commemorates the Maccabees\xe2\x80\x99 rededication of the Old Temple in Jerusalem, following their successful revolt against the Seleucid Empire in the second century\nB.C., during which a limited supply of oil was viewed as having miraculously burned for\neight nights. See County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S.\n573, 582\xe2\x80\x9385 (1989).\n\n3\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\nsettias. Id. 5 The policy explains that these items \xe2\x80\x9ctypify the secular celebration of the holiday season\xe2\x80\x9d and may be purchased. Id. The PBS policy,\nhowever, continues to bar the use of funds \xe2\x80\x9cto purchase seasonal decorations that are religiously significant in nature,\xe2\x80\x9d including a menorah, a\ncross, and a cr\xc3\xa8che. Id. at 1\xe2\x80\x932. Such decorations \xe2\x80\x9ccould be viewed as an\nendorsement of religion lacking any clearly secular purpose,\xe2\x80\x9d and thus\n\xe2\x80\x9cmay not be purchased with PBS funds or displayed in the public spaces\nof federally owned and leased buildings under GSA\xe2\x80\x99s jurisdiction, custody or control.\xe2\x80\x9d Id. at 1. In directing that \xe2\x80\x9csuch decorations must not be\ndisplayed in public areas of buildings,\xe2\x80\x9d id., the policy appears to prohibit\nany display of a religiously significant decoration\xe2\x80\x94even if the display\ncomes at an employee\xe2\x80\x99s personal expense.\nII.\nWe begin with the question of whether GSA may, consistent with fiscal\nlaw, expand its policy to permit the purchase of \xe2\x80\x9creligiously significant\xe2\x80\x9d\ndecorations for display in federal buildings, or to permit federal employees to donate such decorations. We conclude that it may.\nA.\nSince 1987, GAO has recognized that an agency may use appropriations otherwise generally available for building improvements to purchase\nseasonal decorations if the decorations are \xe2\x80\x9cconsistent with work-related\nobjectives and the agency mission\xe2\x80\x9d and are \xe2\x80\x9cnot primarily for the personal\nconvenience or personal satisfaction of a government employee.\xe2\x80\x9d Seasonal Decorations, 67 Comp. Gen. at 88. We agree with that conclusion and\nbelieve it justifies the purchase of religiously significant seasonal decorations as well.\nThe principle of appropriations law at work here is the so-called \xe2\x80\x9cnecessary-expense\xe2\x80\x9d doctrine. Under the Purpose Act, \xe2\x80\x9c[a]ppropriations shall\nbe applied only to the objects for which the appropriations were made\nexcept as otherwise provided by law.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1301(a). But agencies\n\xe2\x80\x9chave considerable discretion in determining whether expenditures further\nthe agency\xe2\x80\x99s authorized purposes and therefore constitute proper use of\n5 The policy shifts between referring to decorations that are \xe2\x80\x9cnot religiously significant\nin nature\xe2\x80\x9d and \xe2\x80\x9cnot primarily religiously significant in nature\xe2\x80\x9d (emphasis added).\n\n4\n\n\x0cReligious Seasonal Decorations in Federal Government Buildings\n\ngeneral or lump-sum appropriations.\xe2\x80\x9d Use of General Agency Appropriations to Purchase Employee Business Cards, 21 Op. O.L.C. 150, 153\n(1997). The necessary-expense doctrine permits an agency to spend from\na general appropriation \xe2\x80\x9c\xe2\x80\x98[i]f the agency believes that the expenditure\nbears a logical relationship to the objectives of the general appropriation,\nand will make a direct contribution to the agency\xe2\x80\x99s mission.\xe2\x80\x99\xe2\x80\x9d Authority of\nthe Department of Health and Human Services to Pay for Private Counsel\nto Represent an Employee Before Congressional Committees, 41 Op.\nO.L.C. __, at *6 (Jan. 18, 2017) (quoting Indemnification of Department\nof Justice Employees, 10 Op. O.L.C. 6, 8 (1986)); see generally GAO,\nPrinciples of Federal Appropriations Law 3-14 to 3-25 (4th ed. 2017)\n(\xe2\x80\x9cRed Book 4th\xe2\x80\x9d).\nWe agree with GAO that the necessary-expense doctrine allows for the\npurchase of seasonal decorations using the Federal Buildings Fund if \xe2\x80\x9cthe\npurchase is consistent with work-related objectives, agency or other\napplicable regulations, and the agency mission, and is not primarily for\nthe personal convenience or satisfaction of a government employee.\xe2\x80\x9d\nSeasonal Decorations, 67 Comp. Gen. at 88. The Federal Buildings Fund,\nwhich is administered by PBS, is \xe2\x80\x9cavailable for real property management\nand related activities in the amounts specified in annual appropriations\nlaws without regard to fiscal year limitations.\xe2\x80\x9d 40 U.S.C. \xc2\xa7 592(c)(1). For\nfiscal year 2020, Congress made this fund \xe2\x80\x9cavailable for necessary expenses of real property management and related activities not otherwise\nprovided for,\xe2\x80\x9d including \xe2\x80\x9coperation\xe2\x80\x9d and \xe2\x80\x9cmaintenance\xe2\x80\x9d of \xe2\x80\x9cfederally\nowned and leased buildings.\xe2\x80\x9d Consolidated Appropriations Act, 2020,\nPub. L. No. 116-93, div. C, tit. V, 133 Stat. 2317, 2464 (Dec. 20, 2019).\nThat treatment continued in the Consolidated Appropriations Act, 2021,\nPub. L. No. 116-260, div. E, tit. V, 134 Stat. 1182 (Dec. 27, 2020). Regulations have long allowed such funds to \xe2\x80\x9cbe expended for pictures, objects\nof art, plants, or flowers (both artificial and real), or any other similar type\nitems,\xe2\x80\x9d as long as the decorations are not \xe2\x80\x9cintended solely for the personal\nconvenience or to satisfy the personal desire of an official or employee.\xe2\x80\x9d\n41 C.F.R. \xc2\xa7 101-26.103-2.\nThe purchase of seasonal decorations \xe2\x80\x9cin public areas where they would\ncontribute to a pleasant working atmosphere,\xe2\x80\x9d Seasonal Decorations, 67\nComp. Gen. at 88, is a logical extension of the necessary-expense doctrine. Like more lasting features of an office space (such as a new desk or\nwall hangings), such decorations may be reasonably related to agency\n5\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\nobjectives because they tend to \xe2\x80\x9cimprov[e] morale and efficiency.\xe2\x80\x9d Id.\nThey are therefore reasonably incidental to the general appropriation for\noperating buildings, which was enacted against the backdrop of a longstanding regulation providing for the payment of decorative expenses. We\ndo not see any categorical difference as a matter of fiscal law between\nreligiously significant seasonal decorations and other kinds of decorations. Both types may \xe2\x80\x9ccontribute to a pleasant working atmosphere.\xe2\x80\x9d Id.\nYour office has not asked us to review any particular proposed display, and whether a particular seasonal decoration reasonably advances\nthese purposes will turn on the facts, as well as any other agencyspecific statutes that may apply. The agency itself \xe2\x80\x9cwill have to make\nthe required determination,\xe2\x80\x9d State and Local Deputation of Federal Law\nEnforcement Officers During Stafford Act Deployments, 36 Op. O.L.C.\n77, 90 (2012), since it is \xe2\x80\x9c\xe2\x80\x98in the best position to determine whether\xe2\x80\x99 an\nexpenditure of funds is necessary to carry out the agency\xe2\x80\x99s mission\neffectively,\xe2\x80\x9d id. (quoting Customs and Border Protection \xe2\x80\x94Relocation\nExpenses, B-306748, 2006 WL 1985415, at *3 (Comp. Gen. July 6,\n2006)); see also Red Book 4th at 3-15 (\xe2\x80\x9c[T]he determination must be\nmade essentially on a case-by-case basis.\xe2\x80\x9d). Generally speaking, though,\nwe believe that an agency will have discretion under the necessaryexpense doctrine to permit the purchase of religiously significant seasonal decorations where it deems them to contribute to these purposes.\nB.\nYour office has also asked whether GSA \xe2\x80\x9cmay or must permit the display of religiously significant decorations\xe2\x80\x9d that are \xe2\x80\x9cpurchased . . . by an\nemployee with the employee\xe2\x80\x99s own funds.\xe2\x80\x9d Opinion Request at 3. This\nquestion implicates different authorities than when an agency itself wishes\nto pay for seasonal decorations. If an employee chooses to decorate a\nprivate workspace\xe2\x80\x94such as in the employee\xe2\x80\x99s personal office\xe2\x80\x94it is\ndoubtful that a fiscal law question would even arise. But if an employeeprovided decoration substituted for a decoration that an agency might\notherwise purchase with appropriated funds, then the private donation of\nsuch a decoration to an agency might be considered a gift.\nAlthough an agency may only accept gifts as authorized by statute,\nGSA, including PBS, has specific statutory authority to accept \xe2\x80\x9con behalf\nof the Federal Government unconditional gifts of property in aid of any\n6\n\n\x0cReligious Seasonal Decorations in Federal Government Buildings\n\nproject or function within\xe2\x80\x9d its jurisdiction. 40 U.S.C. \xc2\xa7 3175; see also\n2 GAO, Principles of Federal Appropriations Law 6-222 to 6-224 (3d ed.\n2006). This authority permits GSA to accept gifts of property for use in\nbuildings that it operates on behalf of other agencies. See Memorandum\nfor Bernard Nussbaum, Counsel to the President, from Daniel L. Koffsky,\nActing Assistant Attorney General, Office of Legal Counsel, Re: Use of\nGSA Authority to Accept Gift of Equipment at 3\xe2\x80\x934 (Aug. 3, 1993); Acceptance of Gifts to Be Used in the White House, the Official Residence of\nthe Vice President, or the Offices of the President and the Vice President,\n2 Op. O.L.C. 349, 351 n.3 (1977). This use of accepted gifts would be an\nexercise of GSA\xe2\x80\x99s power to \xe2\x80\x9coperate, maintain, and protect\xe2\x80\x9d public buildings. 40 U.S.C. \xc2\xa7 582(a). GSA may thus accept employee-donated property such as a menorah or cr\xc3\xa8che for public display in federal buildings\nunder GSA\xe2\x80\x99s jurisdiction. 6\nIII.\nWe now consider whether the PBS seasonal-decorations policy may be\nbroadened consistent with the Establishment Clause of the First Amendment. The Supreme Court has recognized that the government may employ religious symbols and accommodate religious holidays consistent\nwith long-standing tradition. The display of religiously significant seasonal decorations in federal buildings is in keeping with that tradition\nand thus is entitled to \xe2\x80\x9ca strong presumption of constitutionality.\xe2\x80\x9d Am.\nLegion, 139 S. Ct. at 2085; see also id. at 2092 (Kavanaugh, J., concurring) (\xe2\x80\x9cConsistent with the Court\xe2\x80\x99s case law, the Court today applies a\nhistory and tradition test in examining and upholding the constitutionality\nof the Bladensburg Cross.\xe2\x80\x9d). GSA may therefore broaden its seasonaldecorations policy to allow for the display of such decorations.\nA.\nThe Establishment Clause does not preclude the government from taking cognizance of its citizens\xe2\x80\x99 religious practices, but rather prohibits laws\n\xe2\x80\x9crespecting an establishment of religion.\xe2\x80\x9d U.S. Const. amend. I (emphasis\nadded). At the time the Bill of Rights was adopted, the Church of England\n6 GSA\xe2\x80\x99s gift authority applies only to \xe2\x80\x9cunconditional\xe2\x80\x9d gifts. 40 U.S.C. \xc2\xa7 3175. Your\noffice has not asked us about the meaning of that term, and we do not address it here.\n\n7\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\nwas established by law in Britain and \xe2\x80\x9cabout half the states continued to\nhave some form of official religious establishment.\xe2\x80\x9d Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I:\nEstablishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2107 (2003)\n(\xe2\x80\x9cEstablishment at the Founding\xe2\x80\x9d). The founding generation, \xe2\x80\x9c[f]amiliar\nwith life under the established Church of England,\xe2\x80\x9d thus \xe2\x80\x9csought to foreclose the possibility of a national church.\xe2\x80\x9d Hosanna-Tabor Evangelical\nLutheran Church & Sch. v. EEOC, 565 U.S. 171, 183 (2012).\nThe founders also desired to preclude \xe2\x80\x9cthe national legislature from interfering with, or trying to disestablish, churches established by state and\nlocal governments.\xe2\x80\x9d Akhil Reed Amar, The Bill of Rights: Creation and\nReconstruction 32 (1998). The state religious establishments that the\nFounders sought to protect from federal interference took a variety of\nforms, but they generally involved some combination of financial support\nfor a particular church, state control over religious doctrine, religious\ncompulsion, prohibitions on worship in other churches, the use of church\ninstitutions for public functions, and \xe2\x80\x9creligious tests\xe2\x80\x9d for political participation and public office. See Establishment at the Founding, 44 Wm. &\nMary L. Rev. at 2131\xe2\x80\x9381. Thus, the concept of a national \xe2\x80\x9cestablishment\xe2\x80\x9d\nat the time of the Founding did not refer to any government action touching religion, but rather to a distinctive form of support, enforcement, and\ncontrol of religious faith.\nWhatever the ambiguities about what constitutes a law \xe2\x80\x9crespecting\xe2\x80\x9d an\n\xe2\x80\x9cestablishment\xe2\x80\x9d of religion, the Supreme Court\xe2\x80\x99s decisions reflect that the\nEstablishment Clause permits the government to \xe2\x80\x9cpublicly acknowledge\nreligion . . . consistent with long-standing traditions and practices of this\ncountry.\xe2\x80\x9d Religious Restrictions on Capital Financing for Historically\nBlack Colleges and Universities, 43 Op. O.L.C. __, at *4 (Aug. 15, 2019);\nsee also Donald L. Drakeman, Church, State, and Original Intent 216\xe2\x80\x9329\n(2010) (discussing the uncertainties about the meaning of \xe2\x80\x9cestablishment\xe2\x80\x9d\nat the time of the Founding). The Court has long recognized that the\nEstablishment Clause \xe2\x80\x9cdoes not say that in every and all respects there\nshall be a separation of Church and State.\xe2\x80\x9d Zorach v. Clauson, 343 U.S.\n306, 312 (1952). Rather, \xe2\x80\x9c[t]here is an unbroken history of official acknowledgment by all three branches of government of the role of religion\nin American life from at least 1789.\xe2\x80\x9d Lynch v. Donnelly, 465 U.S. 668,\n674 (1984).\n8\n\n\x0cReligious Seasonal Decorations in Federal Government Buildings\n\nThe Court has repeatedly upheld the constitutionality of practices that\nare consistent with this history and tradition. In Marsh v. Chambers, 463\nU.S. 783 (1983), for example, the Court rejected an Establishment Clause\nchallenge to the Nebraska legislature\xe2\x80\x99s more-than-a-century-old practice\nof beginning each of its sessions with a prayer by its official chaplain,\nobserving that \xe2\x80\x9c[t]he opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and\ntradition of this country.\xe2\x80\x9d Id. at 786. In Lynch\xe2\x80\x94the first case in which the\nCourt considered a religiously themed seasonal display\xe2\x80\x94the Court relied\non Marsh to sustain the constitutionality of a display of a cr\xc3\xa8che that the\nCity of Pawtucket had allowed in a public park. The Court rejected an\n\xe2\x80\x9cabsolutist approach\xe2\x80\x9d to the Establishment Clause and instead asked\nwhether the display of the cr\xc3\xa8che \xe2\x80\x9cin reality . . . establishes a religion or\nreligious faith, or tends to do so.\xe2\x80\x9d Lynch, 465 U.S. at 678.\nFive years later, the Court departed from this historical approach in its\nfractured decision in County of Allegheny v. ACLU, Greater Pittsburgh\nChapter, 492 U.S. 573 (1989). Five members of the Court employed a\ncontext-driven approach, based on the three-part test of Lemon v. Kurtzman, 403 U.S. 602 (1971), to determine that a municipality\xe2\x80\x99s display of a\ncr\xc3\xa8che had \xe2\x80\x9cthe effect of endorsing a patently Christian message,\xe2\x80\x9d whereas the display of a menorah did not. County of Allegheny, 492 U.S. at 601\n(majority opinion); see also id. at 623\xe2\x80\x9327 (O\xe2\x80\x99Connor, J., concurring in\npart and concurring in the judgment). 7 The dissenters, led by Justice\nLemon had attempted to distill the Court\xe2\x80\x99s Establishment Clause cases into a threepart test: \xe2\x80\x9cFirst, the statute must have a secular legislative purpose; second, its principal\nor primary effect must be one that neither advances nor inhibits religion; finally, the\nstatute must not foster an excessive government entanglement with religion.\xe2\x80\x9d 403 U.S. at\n612\xe2\x80\x9313 (internal citations and quotation marks omitted). The test has been frequently\ncriticized by Justices as lacking a constitutional foundation and as incapable of principled\napplication. See, e.g., Am. Legion, 139 S. Ct. at 2080 (Alito, J., plurality opinion, joined\nby Roberts, C.J., Breyer and Kavanaugh, JJ.) (\xe2\x80\x9cIn many cases, this Court has either\nexpressly declined to apply the test or has simply ignored it. . . . As Establishment Clause\ncases involving a great array of laws and practices came to the Court, it became more and\nmore apparent that the Lemon test could not resolve them.\xe2\x80\x9d); id. at 2081 (cataloguing\nopinions in which Justices have criticized Lemon); id. at 2092 (Kavanaugh, J., concurring)\n(\xe2\x80\x9cIf Lemon guided this Court\xe2\x80\x99s understanding of the Establishment Clause, then many of\nthe Court\xe2\x80\x99s Establishment Clause cases over the last 48 years would have been decided\ndifferently[.]\xe2\x80\x9d); id. at 2097 (Thomas, J., concurring) (\xe2\x80\x9cI would take the logical next step\nand overrule the Lemon test in all contexts.\xe2\x80\x9d); id. at 2101 (Gorsuch, J., joined by Thomas,\n7\n\n9\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\nKennedy, criticized this approach as embracing a \xe2\x80\x9cjurisprudence of minutiae\xe2\x80\x9d and instead would have followed the historical approach of Marsh in\nupholding both displays. Id. at 674, 662\xe2\x80\x9368 (Kennedy, J., concurring in\nthe judgment in part and dissenting in part, joined by Rehnquist, C.J.,\nWhite, J., and Scalia, J.). The passive and non-coercive \xe2\x80\x9cacknowledgment\nof existing symbols,\xe2\x80\x9d Justice Kennedy maintained, \xe2\x80\x9cdoes not violate the\nEstablishment Clause unless it benefits religion in a way more direct and\nmore substantial than the practices that are accepted in our national heritage.\xe2\x80\x9d Id. at 662\xe2\x80\x9363.\nThe Supreme Court reached another splintered result in 2005, when it\nissued the companion decisions of Van Orden v. Perry, 545 U.S. 677\n(2005), and McCreary County v. ACLU of Ky., 545 U.S. 844 (2005). Van\nOrden upheld the display of a Ten Commandments monument on the\ngrounds of the Texas state capitol, 545 U.S. at 686, while McCreary\nCounty held unconstitutional Ten Commandments displays on the walls of\nKentucky county courthouses, 545 U.S. at 858. Chief Justice Rehnquist\xe2\x80\x99s\nopinion on behalf of four Justices in Van Orden gave great weight to\nhistory in concluding that the Ten Commandments display was constitutional. 545 U.S. at 686. Even though \xe2\x80\x9cthe Ten Commandments are religious,\xe2\x80\x9d he explained, id. at 690, Texas\xe2\x80\x99s passive display did not violate\nthe Establishment Clause any more than did the decades-old image of\n\xe2\x80\x9cMoses . . . holding two tablets that reveal portions of the Ten Commandments written in Hebrew, among other lawgivers in the south frieze\xe2\x80\x9d\nof the Supreme Court courtroom, id. at 688. 8 The Court in McCreary\nJ., concurring) (\xe2\x80\x9cLemon was a misadventure. It sought a \xe2\x80\x98grand unified theory\xe2\x80\x99 of the\nEstablishment Clause but left us only a mess.\xe2\x80\x9d (quoting id. at 2086\xe2\x80\x9387 (plurality opinion)); McCreary County v. ACLU of Ky., 545 U.S. 844, 890 (2005) (Scalia, J., joined by\nRehnquist, C.J., and Thomas, J, dissenting) (\xe2\x80\x9c[A] majority of the Justices on the current\nCourt (including at least one Member of today\xe2\x80\x99s majority) have, in separate opinions,\nrepudiated the brain-spun \xe2\x80\x98Lemon test\xe2\x80\x99 that embodies the supposed principle of neutrality\nbetween religion and irreligion.\xe2\x80\x9d (internal citations omitted)).\n8 Justice Breyer\xe2\x80\x94the only Justice who voted with the majority in both cases and writing only for himself\xe2\x80\x94concurred in the Van Orden judgment, based on a context-sensitive\nanalysis that weighed what he saw as the display\xe2\x80\x99s \xe2\x80\x9cpredominately secular message\xe2\x80\x9d id. at\n702, the fact that the display had \xe2\x80\x9cstood apparently uncontested for nearly two generations,\xe2\x80\x9d and that removing the display would \xe2\x80\x9cexhibit a hostility toward religion that has\nno place in our Establishment Clause traditions,\xe2\x80\x9d id. at 704. Justice Breyer also cautioned\nthat the Court\xe2\x80\x99s various \xe2\x80\x9ctests\xe2\x80\x9d to date, including Lemon, neutrality, and endorsement,\nwere \xe2\x80\x9cinsufficient,\xe2\x80\x9d as they could not \xe2\x80\x9creadily explain the Establishment Clause\xe2\x80\x99s toler-\n\n10\n\n\x0cReligious Seasonal Decorations in Federal Government Buildings\n\nCounty, on the other hand, used a Lemon-based analysis similar to that of\nCounty of Allegheny to declare the Kentucky displays unconstitutional,\nbased on what the Court perceived as their \xe2\x80\x9cpredominately religious\npurpose.\xe2\x80\x9d 545 U.S. at 881. In dissent, Justice Scalia castigated the usefulness of the Lemon test in explaining the \xe2\x80\x9chistory and traditions that reflect\nour society\xe2\x80\x99s constant understanding of \xe2\x80\x9d the words of the Constitution. Id.\nat 889 (Scalia, J., joined by Rehnquist, C.J., and Thomas, J.). \xe2\x80\x9cHistorical\npractices,\xe2\x80\x9d he countered, \xe2\x80\x9cdemonstrate that there is a distance between the\nacknowledgment of a single Creator and the establishment of a religion.\xe2\x80\x9d\nId. at 894.\nIn recent years, however, the Court has retreated from these fractured\ndecisions and confirmed the historical approach that is, in our view, more\nconsistent with the Nation\xe2\x80\x99s constitutional tradition and the original\nmeaning of the Establishment Clause. In 2014, the Supreme Court relied\non history and tradition in sustaining a recent practice of opening board\nmeetings in the Town of Greece, New York with a benediction from\ndesignated clergy. See Town of Greece v. Galloway, 572 U.S. 565, 570\n(2014); see also id. at 577, 586 (approvingly citing Justice Kennedy\xe2\x80\x99s\nCounty of Allegheny opinion). The Court asked whether the town\xe2\x80\x99s practice \xe2\x80\x9cfits within the tradition long followed in Congress and the state\nlegislatures\xe2\x80\x9d of beginning sessions with a prayer. Id. at 577. The Court\nconcluded that it did, notwithstanding its avowedly religious content and\nrelatively recent historical provenance. Id. at 581.\nThe Court again followed this historical approach in 2019 in rejecting\nan Establishment Clause challenge to the placement of a Latin cross,\nowned and maintained by the Maryland-National Capital Park and Planning Commission, at a busy intersection as part of a 1925 World War I\nmemorial. Am. Legion, 139 S. Ct. 2067. Writing for the majority, Justice\nAlito placed that cross within a larger, well-established tradition of using\ncrosses to commemorate soldiers who had given their lives in World War\nI. Id. at 2085\xe2\x80\x9387. Justice Alito also situated the cross within the national\ntradition of officially acknowledging religion\xe2\x80\x94a practice, he noted, that\nreflected \xe2\x80\x9crespect and tolerance for differing views, an honest endeavor to\nance, for example, of the prayers that open legislative meetings, certain references to, and\ninvocations of, the Deity in the public words of public officials; the public references to\nGod on coins, decrees, and buildings; or the attention paid to the religious objectives of\ncertain holidays, including Thanksgiving.\xe2\x80\x9d Id. at 699 (internal citations omitted).\n\n11\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\nachieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans.\xe2\x80\x9d Id. at\n2089 (plurality opinion). \xe2\x80\x9cWhere categories of monuments, symbols, and\npractices with a longstanding history follow in that tradition,\xe2\x80\x9d he continued, \xe2\x80\x9cthey are likewise constitutional.\xe2\x80\x9d Id. Justices Gorsuch and Thomas\ndiffered from the two Justices who joined that part of Justice Alito\xe2\x80\x99s\nopinion in full only in that they would have given even greater weight to\nhistory. See id. at 2096\xe2\x80\x9397 (Thomas, J., concurring in judgment); id. at\n2102 (Gorsuch, J., concurring in judgment). And a clear majority of the\nJustices in American Legion rejected the analysis of Lemon in favor of\none based on history and tradition. 9\nWe think these decisions establish that PBS\xe2\x80\x99s 2018 policy relied on an\noverly restrictive constitutional framework. By prohibiting the display of\nseasonal decorations thought to be \xe2\x80\x9creligiously significant,\xe2\x80\x9d rather than\nthose thought to \xe2\x80\x9ctypify the secular celebration of the holiday season,\xe2\x80\x9d\nPBS relied on the Supreme Court\xe2\x80\x99s fractured decision in County of Allegheny, and the context-sensitive approach inspired by Lemon. PBS Order\nNo. 4200.2, at 1 & nn.2\xe2\x80\x933. But the correct question is not whether the\ndisplays themselves are religiously significant, or whether they satisfy the\nLemon framework, but rather whether they are the kind of displays that\nare consistent with the \xe2\x80\x9chistory and tradition\xe2\x80\x9d of this country. Am. Legion,\n139 S. Ct. at 2092 (Kavanaugh, J., concurring) (citing Town of Greece,\nChief Justice Rehnquist\xe2\x80\x99s Van Orden opinion, and Marsh).\nWe think that, in asking whether a seasonal display is consistent with\nhistory and tradition, PBS may take a wide-lens approach in seeking\nhistorical analogs for a seasonal display\xe2\x80\x94an approach that the Court itself\nhas repeatedly followed. In Town of Greece, for example, the Court\nanalyzed a practice of legislative prayer that had begun only 15 years\nprior. 572 U.S. at 570. But the Court did not ask whether the town\xe2\x80\x99s\npractice of legislative prayer itself was old; instead, it asked rather wheth9 See Am. Legion, 139 S. Ct. at 2081\xe2\x80\x9382 (plurality opinion) (noting that various considerations \xe2\x80\x9ccounsel against efforts to evaluate such cases under Lemon and toward\napplication of a presumption of constitutionality for longstanding monuments, symbols,\nand practices\xe2\x80\x9d); id. at 2097 (Thomas, J., concurring) (\xe2\x80\x9cI would take the logical next step\nand overrule the Lemon test in all contexts.\xe2\x80\x9d); id. at 2101 (Gorsuch, J., concurring)\n(agreeing with the plurality that \xe2\x80\x9cLemon was a misadventure\xe2\x80\x9d and noting that \xe2\x80\x9cnot a\nsingle Member of the Court even tries to defend Lemon\xe2\x80\x9d against various criticisms).\n\n12\n\n\x0cReligious Seasonal Decorations in Federal Government Buildings\n\ner that practice \xe2\x80\x9cfits within the tradition long followed in Congress and\nthe state legislatures.\xe2\x80\x9d Id. at 577. Similarly, in Lynch, the Court relied on\nthe government\xe2\x80\x99s history of acknowledging religion to uphold the constitutionality of a cr\xc3\xa8che that the town had included in its Christmas display\nfor about 40 years but had purchased only 11 years prior. 465 U.S. at 671.\nThe Court acknowledged that \xe2\x80\x9cthe cr\xc3\xa8che is identified with one religious\nfaith,\xe2\x80\x9d but observed that this was \xe2\x80\x9cno more so than the examples\xe2\x80\x9d it had\nupheld previously and that have been part of our Nation\xe2\x80\x99s tradition\xe2\x80\x94\nincluding faith-specific legislative prayers, displays of religiously themed\nart in the National Gallery, and religious holidays such as Thanksgiving.\n465 U.S. at 674\xe2\x80\x9378, 685\xe2\x80\x9386. And in Van Orden, Chief Justice\nRehnquist\xe2\x80\x99s plurality opinion considered the history of other kinds of Ten\nCommandments displays on government property\xe2\x80\x94such as a statue of\nMoses holding the tablets in the rotunda of the Library of Congress\xe2\x80\x99s\nJefferson Building and a frieze of Moses holding them in the Supreme\nCourt\xe2\x80\x94to uphold a monument that was installed on Texas capitol grounds\nin 1961. 545 U.S. at 688\xe2\x80\x9389.\nThis broad analogical approach is reflected in Justice Kennedy\xe2\x80\x99s opinion in County of Allegheny, which has formed the basis for the Court\xe2\x80\x99s\nnow-controlling approach in this area. In it, Justice Kennedy used a wide\nhistorical lens to support the constitutionality of the display of a cr\xc3\xa8che\nand a menorah\xe2\x80\x94two concededly religious decorations. Such displays fell\n\xe2\x80\x9cwell within the tradition of government accommodation and acknowledgment of religion that has marked our history from the beginning.\xe2\x80\x9d 492\nU.S. at 663 (Kennedy, J., concurring in the judgment in part and dissenting in part). The \xe2\x80\x9cpassive acknowledgment of existing symbols does not\nviolate the Establishment Clause,\xe2\x80\x9d he concluded, \xe2\x80\x9cunless it benefits religion in a way more direct and more substantial than practices that are\naccepted in our national heritage.\xe2\x80\x9d Id. at 662\xe2\x80\x9363.\nB.\nOur Nation\xe2\x80\x99s history and traditions, evaluated in light of this approach,\nmake clear that a symbolic acknowledgment of religion by the government is, at a minimum, entitled to \xe2\x80\x9ca strong presumption of constitutionality.\xe2\x80\x9d Am. Legion, 139 S. Ct. at 2085. The PBS policy of categorically\nprohibiting the display of certain \xe2\x80\x9creligiously significant\xe2\x80\x9d decorations thus\nis not required by the Establishment Clause.\n13\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\nThe historical evidence is overwhelming that a mere public acknowledgment or even celebration of religion is not an \xe2\x80\x9cestablishment\xe2\x80\x9d of\nreligion. Our Founders, including the First Congress\xe2\x80\x94whose practice \xe2\x80\x9cis\nstrong evidence of the original meaning of the Constitution,\xe2\x80\x9d Fin. Oversight & Mgmt. Bd. v. Aurelius Inv., 140 S. Ct. 1649, 1659 (2020)\xe2\x80\x94\nexplicitly acknowledged and celebrated religion. The Constitution itself\naccommodates the Christian Sabbath in the Sundays Excepted Clause of\nArticle I, Section 7, which does not count Sundays as part of the ten days\nthe President has to return a bill to Congress. Nineteenth-century observers recognized this clause as an implicit recognition that the President\nwould not engage in official business on the Christian Sabbath. See\nDaniel L. Dreisbach, In Search of a Christian Commonwealth: An Examination of Selected Nineteenth-Century Commentaries on References to\nGod and the Christian Religion in the United States Constitution, 48\nBaylor L. Rev. 927, 974\xe2\x80\x9377 (1996) (\xe2\x80\x9cArguably, Article I, Section 7\nconstitutionally sanctioned Sunday observances.\xe2\x80\x9d). The Supreme Court\nhas likewise described the Sundays Excepted Clause as historical evidence \xe2\x80\x9cthat this is a religious nation.\xe2\x80\x9d Church of the Holy Trinity v.\nUnited States, 143 U.S. 457, 470 (1892).\nOnly one day after it approved the Establishment Clause for submission\nto the States, the First Congress urged President Washington to proclaim\n\xe2\x80\x9ca day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favours of Almighty God.\xe2\x80\x9d\nLynch, 465 U.S. at 675 n.2. President Washington did so, designating\nThursday, November 26, 1789, as a day of thanks. 1 A Compilation of the\nMessages and Papers of the Presidents, 1789\xe2\x80\x931897 64 (James A. Richardson ed., 1899). President Washington urged devotion \xe2\x80\x9cto the service of\nthat great and glorious Being\xe2\x80\x9d and unity \xe2\x80\x9cin most humbly offering our\nprayers and supplications to the great Lord and Ruler of Nations.\xe2\x80\x9d Id.\nPresidents have routinely followed his example in declaring a national day\nof Thanksgiving, though Congress did not formally recognize it as an\nofficial holiday until 1870. See Lynch, 465 U.S. at 675.\nIn like fashion, Article III of the Northwest Ordinance declared: \xe2\x80\x9cReligion, morality, and knowledge, being necessary to good government and\nthe happiness of mankind, schools and the means of education shall\nforever be encouraged.\xe2\x80\x9d Act of Aug. 7, 1789, ch. 8, 1 Stat. 50, 52 n.(a)\n(quoting Northwest Ordinance of 1787 in footnote of statute providing for\n14\n\n\x0cReligious Seasonal Decorations in Federal Government Buildings\n\nOrdinance to continue in effect). The same week it proposed the Establishment Clause, Res. of Sept. 25, 1789, 1 Stat. 97, 97\xe2\x80\x9398, the First Congress provided paid chaplains to both the House and Senate, Act of Sept.\n22, 1789, ch. 17, \xc2\xa7 4, 1 Stat. 70, 71; see also Marsh v. Chambers, 463\nU.S. 783, 787\xe2\x80\x9388 (1983). Congress also has provided for a paid chaplains\ncorps for our military forces ever since the First Continental Congress. 10\nThe Judiciary Act of 1789 prescribed an oath for Supreme Court justices,\nfederal judges, federal marshals, and clerks of court that concluded with\nthe phrase \xe2\x80\x9cSo help me God.\xe2\x80\x9d 11 The oath of office of the President does\nnot include those words, but President Washington is believed to have\nadded the phrase to the end of his first oath, and Presidents have done so\nby tradition since. See John R. Alden, George Washington: A Biography\n236 (1984); Newdow v. Roberts, 603 F.3d 1002, 1018 (D.C. Cir. 2010)\n(Kavanaugh, J., concurring). Sessions of the Senate and House of Representatives have opened with a prayer since the First Continental Congress\ndid so in 1774. Presidents have proclaimed National Days of Prayer,\nfollowing the example of the first Continental Congress in 1775. 12 The\n10 See Katcoff v. Marsh, 755 F.2d 223, 232 (2d Cir. 1985) (\xe2\x80\x9cCongress\xe2\x80\x99[s] authorization\nof a military chaplaincy before and contemporaneous with the adoption of the Establishment Clause is also \xe2\x80\x98weighty evidence\xe2\x80\x99 that it did not intend that Clause to apply to such a\nchaplaincy.\xe2\x80\x9d (quoting Wisconsin v. Pelican Ins., 127 U.S. 265, 297 (1888)).\n11 Act of Sept. 24, 1789, ch. 20, \xc2\xa7 8, 1 Stat. 73, 76 (oath for Supreme Court justices\nand federal judges, codified as amended at 28 U.S.C. 453); id. \xc2\xa7 27, 1 Stat. at 87 (oath for\nU.S. marshals); id. \xc2\xa7 7, 1 Stat. at 76 (oath for clerks of court, codified as amended at 28\nU.S.C. \xc2\xa7 951). The current oath of office for those \xe2\x80\x9celected or appointed to an office of\nhonor or profit in the civil service or uniformed services,\xe2\x80\x9d including members of Congress\nbut excluding the President, includes \xe2\x80\x9cSo help me God.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3331 (derived from\nAct of Feb. 15, 1871, ch. 53, 16 Stat. 412, 412 (initially codified at Rev. Stat. \xc2\xa7 1757, 18\nStat., pt. 1, at 314 (1875)).\n12 See Derek H. Davis, Religion and the Continental Congress: 1774\xe2\x80\x931789 84, 90\n(2000). In 1952, Congress directed \xe2\x80\x9c[t]hat the President shall set aside and proclaim a\nsuitable day each year, other than a Sunday, as a National Day of Prayer, on which the\npeople of the United States may turn to God in prayer and meditation at churches, in\ngroups, and as individuals.\xe2\x80\x9d Pub. L. No. 324, 66 Stat. 64. President Truman accordingly\nproclaimed July 4, 1952, as the first National Day of Prayer. Proc. No. 2978 (June 17,\n1952), 3 C.F.R. 32, 32 (1952 Supp.). Today the National Day of Prayer is the first Thursday in May. 36 U.S.C. \xc2\xa7 119. Presidents have routinely issued other proclamations\nencouraging citizens to pray on various matters of concern. See, e.g., Proc. No. 9634, 82\nFed. Reg. 42,439, 42,439 (Sept. 7, 2017) (\xe2\x80\x9cI urge Americans of all faiths and religious\ntraditions and backgrounds to offer prayers today for all those harmed by Hurricane\n\n15\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\nDeclaration of Independence states that all men \xe2\x80\x9care endowed by their\nCreator with certain unalienable Rights.\xe2\x80\x9d And since the age of John Marshall, the Supreme Court has opened its sessions with a plea that \xe2\x80\x9cGod\nsave the United States and this Honorable Court.\xe2\x80\x9d 1 Charles Warren, The\nSupreme Court in United States History 469 (1922). Such practices reflect\nthat \xe2\x80\x9c[w]e are a religious people whose institutions presuppose a Supreme\nBeing.\xe2\x80\x9d Zorach v. Clauson, 343 U.S. 306, 313 (1952); Church of the Holy\nTrinity, 143 U.S. at 465 (\xe2\x80\x9c[T]his is a religious people. This is historically\ntrue. From the discovery of this continent to the present hour, there is a\nsingle voice making this affirmation.\xe2\x80\x9d). The Establishment Clause does\nnot, and was never intended, to preclude such a recognition of the religious practices of the people of this country.\nThe Founding-era practice of acknowledging religion has extended\nover the length of American history and the breadth of American institutions. Numerous congressional resolutions have recognized the contributions of religion to public life. 13 Presidential inaugural addresses have\nvoiced religious themes. 14 Official state mottoes express religious convicHarvey . . . . Each of us, in our own way, may call upon our God for strength and comfort\nduring this difficult time. I call on all Americans and houses of worship throughout the\nNation to join in one voice of prayer, as we seek to uplift one another and assist those\nsuffering from the consequences of this terrible storm.\xe2\x80\x9d).\n13 See, e.g., Mormon Pioneer National Heritage Area Act, Pub. L. No. 109-338,\n\xc2\xa7 252(a)(1), 120 Stat. 1783, 1800 (2006) (finding that \xe2\x80\x9cthe historical, cultural, and\nnatural heritage legacies of Mormon colonization and settlement are nationally significant\xe2\x80\x9d); Pub. L. No. 101-104, 103 Stat. 673, 673 (1989) (designating the week of September 24, 1989, as \xe2\x80\x9cReligious Freedom Week\xe2\x80\x9d; finding that \xe2\x80\x9cthroughout our Nation\xe2\x80\x99s\nhistory, religion has contributed to the welfare of believers and of society generally, and\nhas been a force for maintaining high standards for morality, ethics, and justice\xe2\x80\x9d); Pub. L.\nNo. 94-95, 89 Stat. 477 (1975) (designating September 14, 1975, as \xe2\x80\x9cNational Saint\nElizabeth Seton Day\xe2\x80\x9d; finding that, \xe2\x80\x9cthrough her own life and work and through the work\nof thousands of women who traced the origins of their religious foundations to her\nfounding of the Sisters of Charity of Saint Joseph of Emmitsburg, Maryland, on July 31,\n1809,\xe2\x80\x9d Elizabeth Seton \xe2\x80\x9cmade an extraordinary contribution to the religious and moral life\nof our country as well as to the education, health, and welfare of vast numbers of our\ncitizens\xe2\x80\x9d).\n14 George Washington made a prayer a part of his first official act as President. Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, at 2 (\xe2\x80\x9c[I]t would\nbe peculiarly improper to omit in this first official act my fervent supplications to that\nAlmighty Being who rules over the universe[.]). See generally id.; Robert N. Bellah, Civil\nReligion in America, 96 Daedalus 1 (1967).\n\n16\n\n\x0cReligious Seasonal Decorations in Federal Government Buildings\n\ntions. 15 \xe2\x80\x9c[C]ountless\xe2\x80\x9d cities and towns across our country bear \xe2\x80\x9cnames\nthat are rooted in religion.\xe2\x80\x9d Am. Legion, 139 S. Ct. at 2084. And since\nCongress established it in 1954, our Pledge of Allegiance has stated that\nwe are \xe2\x80\x9cone Nation under God.\xe2\x80\x9d 16\nState laws requiring businesses to close on Sundays date from before\nthe Founding, when they acquired the name \xe2\x80\x9cblue laws,\xe2\x80\x9d perhaps because\nearly instances of them were printed on blue paper. See David N. Laband\n& Deborah Hendry Heinbuch, Blue Laws: The History, Economics, and\nPolitics of Sunday-Closing Laws 8 (1987). Such laws continued to be\ncommon in the twentieth century. See Lesley Lawrence-Hammer, Note,\nRed, White, but Mostly Blue: The Validity of Modern Sunday Closing\nLaws Under the Establishment Clause, 60 Vand. L. Rev. 1273, 1277\xe2\x80\x9382\n(2007). In a trio of 1961 decisions, the Supreme Court upheld Sundayclosing laws against constitutional challenge. See McGowan v. Maryland,\n366 U.S. 420 (1961); Two Guys v. McGinley, 366 U.S. 582 (1961);\nBraunfeld v. Brown, 366 U.S. 599 (1961). Federal, state, and local governments have also recognized\xe2\x80\x94and continue to recognize\xe2\x80\x94a number of\nannual religious holidays, including Good Friday, Easter, Christmas, and\nJewish holy days, as well as Thanksgiving, which at the very least has\nreligious roots even if \xe2\x80\x9cdespite its religious origins\xe2\x80\x9d many understand it\n\xe2\x80\x9cas a celebration of patriotic values rather than particular religious beSee, e.g., Am. Legion, 139 S. Ct. at 2084 & n.22 (noting, among other state mottoes,\nthe Arizona motto of \xe2\x80\x9cDitat Deus,\xe2\x80\x9d or \xe2\x80\x9cGod enriches,\xe2\x80\x9d); ACLU of Ohio v. Capitol Square\nRev. & Adv. Bd., 243 F.3d 289, 291 (6th Cir. 2001) (holding that \xe2\x80\x9cOhio\xe2\x80\x99s state motto,\n\xe2\x80\x98With God, All Things Are Possible,\xe2\x80\x99 does not violate the Establishment Clause\xe2\x80\x9d).\n16 Congress first established the Pledge of Allegiance in 1942, Pub. L. No. 77-623, \xc2\xa7 7,\n56 Stat. 377, 380, and amended it in 1954 to include the phrase \xe2\x80\x9cunder God\xe2\x80\x9d after \xe2\x80\x9cone\nNation,\xe2\x80\x9d Pub. L. No. 83-396, 68 Stat. 249, 249 (currently codified 4 U.S.C. \xc2\xa7 4). The\nPledge has been upheld against constitutional challenge. See Sherman v. Community\nConsol. Sch. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992) (\xe2\x80\x9cUnless we are to treat the\nfounders of the United States as unable to understand their handiwork . . . we must ask\nwhether those present at the creation deemed ceremonial invocations of God as \xe2\x80\x98establishment.\xe2\x80\x99 They did not.\xe2\x80\x9d); see also Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1,\n17 (2004) (reversing a decision of the Ninth Circuit striking down the pledge, Newdow v.\nU.S. Congress, 328 F.3d 466 (9th Cir. 2002), for lack of standing); Wallace v. Jaffree,\n472 U.S. 38, 78 n.5 (1985) (\xe2\x80\x9cO\xe2\x80\x99Connor, J., concurring) (\xe2\x80\x9cIn my view, the words \xe2\x80\x98under\nGod\xe2\x80\x99 in the Pledge . . . serve as an acknowledgment of religion with \xe2\x80\x98the legitimate\nsecular purposes of solemnizing public occasions, [and] expressing confidence in the\nfuture.\xe2\x80\x99\xe2\x80\x9d).\n15\n\n17\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\nliefs.\xe2\x80\x9d County of Allegheny, 492 U.S. at 631 (O\xe2\x80\x99Connor, J., concurring in\npart and concurring in the judgment, joined by Brennan and Stevens,\nJJ.). 17 The constitutionality of closing schools and other public institutions\non such holidays has been repeatedly upheld by the lower courts. 18\nThe use of visual religious symbols in our government likewise dates\nfrom the Founding. In 1776, the Continental Congress appointed a committee that included Benjamin Franklin, Thomas Jefferson, and John\nAdams to design a seal for the new nation. See Michael W. McConnell,\nNo More (Old ) Symbol Cases, 2018\xe2\x80\x932019 Cato Sup. Ct. Rev. 91, 107;\nJames H. Hutson, Religion and the Founding of the American Republic 50\n(1998). They originally proposed on one side a scene that included the\n\nSee, e.g., Act of Mar. 2, 1867, ch. 176, \xc2\xa7 48, 14 Stat. 517, 540\xe2\x80\x9341 (declaring that\nChristmas, along with Sundays, Thanksgiving, and other holidays, would not be counted\ntoward deadlines in federal bankruptcy proceedings); Act of June 28, 1870, ch. 167, 16\nStat. 168 (declaring that Christmas and Thanksgiving would be public holidays in the\nDistrict of Columbia and would be treated like Sundays for banking purposes); see\ngenerally Lynch, 465 U.S. at 675 & n.2 (noting early origins and religious nature of the\nThanksgiving holiday); Rabbi Joshua Eli Plaut, A Kosher Christmas: \xe2\x80\x98Tis the Season to\nBe Jewish 41\xe2\x80\x9342 (2012) (recounting the history of public Chanukah celebrations, including lighting ceremonies at the White House); Cong. Research Serv., Jewish Holidays:\nFact Sheet (updated Dec. 4, 2018), https://fas.org/sgp/crs/misc/R45002.pdf (listing\nexamples of government recognition of Jewish holidays); Fla. Stat. \xc2\xa7 683.19 (2020) (\xe2\x80\x9cThe\nchief judge of any judicial circuit is authorized to designate Rosh Hashanah, Yom Kippur,\nand Good Friday as legal holidays for the courts within the judicial circuit.\xe2\x80\x9d); N.C. Gen.\nStat. \xc2\xa7 103-4(a) (2020) (listing Good Friday, Yom Kippur, and Christmas\xe2\x80\x94among\nothers\xe2\x80\x94as \xe2\x80\x9clegal public holidays\xe2\x80\x9d); La. Stat. \xc2\xa7 17:2118 (2020) (authorizing schooldistrict staff to \xe2\x80\x9coffer traditional greetings\xe2\x80\x9d regarding \xe2\x80\x9ctraditional celebrations in winter,\xe2\x80\x9d\nincluding but not limited to \xe2\x80\x9cMerry Christmas\xe2\x80\x9d and \xe2\x80\x9cHappy Hanukkah\xe2\x80\x9d); Tex. Educ.\nCode \xc2\xa7 29.920 (2020) (similar); Tenn. Code \xc2\xa7 49-6-1033 (2020) (similar).\n18 See Koenick v. Felton, 190 F.3d 259, 266 (4th Cir. 1999) (upholding Maryland statute that provided for public school holidays on both Good Friday and Easter Monday;\nnoting that \xe2\x80\x9c[t]his statutory four-day holiday around Easter has been a part of the Montgomery County Public School Calendar for 130 years\xe2\x80\x9d); Ganulin v. United States, 71\nF. Supp. 2d 824, 835 (S.D. Ohio 1999), aff\xe2\x80\x99d, 238 F.3d 420 (6th Cir. 2000) (per curiam)\n(Christmas Day as a legal public holiday does not violate the Establishment Clause);\nBridenbaugh v. O\xe2\x80\x99Bannon, 185 F.3d 796, 802 (7th Cir. 1999) (upholding Indiana\xe2\x80\x99s Good\nFriday holiday law); Granzeier v. Middleton, 173 F.3d 568, 571 (6th Cir. 1999) (upholding Kentucky\xe2\x80\x99s Good Friday holiday law); Cammack v. Waihee, 932 F.2d 765, 782 (9th\nCir. 1991) (upholding Hawaii\xe2\x80\x99s Good Friday holiday law); but see Metzl v. Leininger, 57\nF.3d 618, 624 (7th Cir. 1995) (holding that Illinois\xe2\x80\x99s Good Friday school holiday law\nviolated the Establishment Clause).\n17\n\n18\n\n\x0cReligious Seasonal Decorations in Federal Government Buildings\n\nEye of Providence\xe2\x80\x94\xe2\x80\x9can adoption of a very ancient symbol of the overseeing God\xe2\x80\x9d\xe2\x80\x94and on the reverse, Moses leading the Israelites across the Red\nSea\xe2\x80\x94adorned with the words \xe2\x80\x9cRebellion to Tyrants is Obedience to\nGod.\xe2\x80\x9d Id.; Gaillard Hunt, History of the Seal of the United States 12\xe2\x80\x9313\n(1909). 19 The Great Seal of the United States, adopted both by the Confederation Congress in 1782 and the First Congress in 1789, see Act of\nSept. 15, 1789, \xc2\xa7 3, 1 Stat. 68, 68, likewise employs imagery that, while\nclassical in its origins, points toward a transcendent deity: On its reverse\nface, the Eye of Providence oversees a thirteen-layered pyramid representing the original thirteen colonies, and it includes the Latin phrase \xe2\x80\x9cAnnuit\nCoeptis,\xe2\x80\x9d which is translated as \xe2\x80\x9cHe has favored our undertakings.\xe2\x80\x9d See,\ne.g., U.S. Dep\xe2\x80\x99t of State, The Great Seal of the United States 4 (2003)\n(\xe2\x80\x9cGreat Seal\xe2\x80\x9d) (available for download at https://diplomacy.state.gov/\nexplore-online-exhibits/the-great-seal/) (last visited Jan. 12, 2021). According to the contemporaneous report of early-American congressional\nsecretary Charles Thomson, the eye and motto were selected to \xe2\x80\x9callude to\nthe many signal interpositions of providence in favour of the American\ncause.\xe2\x80\x9d Hunt, History of the Seal of the United States at 42. The religious\ntext and imagery of the Great Seal continue to appear throughout American public life\xe2\x80\x94including, for example, on the reverse side of the contemporary one-dollar bill, little-changed since it was adopted in 1935. See\nGreat Seal at 13.\nThe use of religious symbolism extends well beyond the seal. The inscription \xe2\x80\x9cIn God We Trust\xe2\x80\x9d first appeared on the 1864 two-cent coin. 20 It\nnow appears on all American currency. 21 Congress declared it to be the\nnational motto in 1956, Pub. L. No. 84-851, 70 Stat. 732, 732 (currently\ncodified at 36 U.S.C. \xc2\xa7 302), and it is inscribed above the main door of\n19 We have found no evidence that this shift in design reflected a desire to avoid religious imagery; one historian speculates that the change resulted because the image of\nMoses was \xe2\x80\x9cwholly unsuited to a coat of arms.\xe2\x80\x9d Hunt, History of the Seal of the United\nStates at 10.\n20 U.S. Dep\xe2\x80\x99t of the Treasury, History of \xe2\x80\x9cIn God We Trust\xe2\x80\x9d (last updated March 3,\n2011), https://www.treasury.gov/about/education/Pages/in-god-we-trust.aspx (recounting\nthe history of the inscription on American currency) (last visited Jan. 12, 2021).\n21 Id.; see also 31 U.S.C. \xc2\xa7\xc2\xa7 5112, 5114 (requiring the inscription). The inscription has\nalso been upheld against repeated constitutional challenge. New Doe Child #1 v. United\nStates, 901 F.3d 1015, 1022 (8th Cir. 2018); Mayle v. United States, 891 F.3d 680, 687\n(7th Cir. 2018); Gaylor v. United States, 74 F.3d 214, 217\xe2\x80\x9318 (10th Cir. 1996).\n\n19\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\nSenate and behind the chair of the Speaker of House, see Pub. L. No. 107293, \xc2\xa7 1(10), 116 Stat. 2057, 2058 (2002).\nReligiously significant decorations have also adorned federal buildings\nfor decades. In the courtroom of the Supreme Court of the United States, a\nfrieze depicts Moses \xe2\x80\x9cholding two tablets that reveal portions of the Ten\nCommandments written in Hebrew,\xe2\x80\x9d alongside other religious and secular\nlawgivers. Van Orden, 545 U.S. at 688. The Ten Commandments appear\nas well on gates and doors elsewhere in the Court\xe2\x80\x99s building. Id. The art\ncollection displayed in the Robert F. Kennedy Department of Justice\nBuilding includes enormous Depression-era paintings of many notable\nsecular and religious lawgivers, among them Jesus and Moses. U.S. Dep\xe2\x80\x99t\nof Justice, The Robert F. Kennedy Building 72\xe2\x80\x9378 (2009), https://www.\njustice.gov/sites/default/files/jmd/legacy/2014/06/30/75RFKBuilding.pdf.\nThe building\xe2\x80\x99s Great Hall contains a statue entitled The Spirit of Justice,\nwhich has two tablets representing the Ten Commandments lying at its\nfeet. Id. at 50.\nWhile we have not identified historical sources addressing religiously\nsignificant seasonal decorations in federal buildings around the time of\nthe Founding, such decorations are consistent with the Founders\xe2\x80\x99 openness to religious practices, use of religious imagery, and accommodation\nof religious holidays. Certainly, seasonal religious decorations are not\nnew to American public life. Christmas emerged as a widely celebrated\nholiday in the 19th century, and so too did the public use of Christmas\ndecorations. President Franklin Pierce \xe2\x80\x9cput the first tree in the White\nHouse in 1856, a tradition that had become established by the 1880s.\xe2\x80\x9d\nPenne L. Restad, Christmas in America: A History 63 (1995). The\nChristmas tree undeniably has a religious history and meaning. See Greg\nDues, Catholic Customs and Traditions: A Popular Guide 57\xe2\x80\x9358 (revised\ned. 2000) (noting that Christmas trees \xe2\x80\x9cpreserve . . . rich Christian symbolism: the green of hope at a time of dying, the burning light of Christ at\na time of spiritual darkness, and the fruits of paradise\xe2\x80\x9d); Michael W.\nMcConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115,\n188\xe2\x80\x9389 (1992). Christmas was established as a legal holiday in all states\nand territories between 1836 and 1890. James H. Barnett, The American\nChristmas: A Study in National Culture 19 (1954); see also id. at 20 tbl. 1\n(describing the dates of legal recognition). As noted, Congress made\nChristmas a federal holiday in 1870.\n20\n\n\x0cReligious Seasonal Decorations in Federal Government Buildings\n\nThe public acknowledgment and celebration of Christmas expanded in\nthe middle and late 20th century. See Restad, Christmas in America at\n156. At regular occasions since the 1960s, for example, an ornate cr\xc3\xa8che\nhas been displayed seasonally at the White House. See Allen v. Hickel,\n424 F.2d 944, 945 (D.C. Cir. 1970); Office of the Press Secretary to Mrs.\nJohnson, Press Release (Dec. 13, 1967), https://www.fordlibrarymuseum.\ngov/library/document/0018/81556745.pdf (last visited Jan. 12, 2021); see\nalso Zelda Caldwell, The 300-Year-Old Nativity Scene in the White\nHouse, Aleteia (Nov. 29, 2018), https://aleteia.org/2018/11/29/how-the300-year-old-nativity-scene-in-the-white-house-was-once-banned/ (last\nvisited Jan. 12, 2021). A 2015 White House press release touted the\ncr\xc3\xa8che as a \xe2\x80\x9clong-standing holiday tradition\xe2\x80\x9d that \xe2\x80\x9chas sat in the East\nRoom for the holidays for more than forty-five years, spanning nine\nadministrations.\xe2\x80\x9d See Office of the First Lady, The White House, 2015\nWhite House Holidays\xe2\x80\x94A Timeless Tradition (Dec. 2, 2015), https://\nobamawhitehouse.archives.gov/the-press-office/2015/12/02/2015-whitehouse-holidays-timeless-tradition (last visited Jan. 12, 2021). A 2018\nWhite House press release noted that the cr\xc3\xa8che would soon be on display that season for its \xe2\x80\x9c51st year.\xe2\x80\x9d See The White House, Statements &\nReleases, First Lady Melania Trump Unveils Christmas at the White\nHouse 2018 (Nov. 26, 2018), https://www.whitehouse.gov/briefingsstatements/first-lady-melania-trump-unveils-christmas-white-house2018/ (last visited Jan. 12, 2021).\nThe federal government has also displayed the \xe2\x80\x9cNational Menorah\xe2\x80\x9d\xe2\x80\x94\na thirty-foot menorah that is erected seasonally on the Ellipse just south\nof the White House\xe2\x80\x94for decades. President Carter participated in the\nNational Menorah\xe2\x80\x99s first lighting in 1979. See Kat Eschner, Why There\xe2\x80\x99s\nA 30-Foot Menorah on the National Mall, Smithsonian Magazine (Dec.\n23, 2016), https://www.smithsonianmag.com/smart-news/why-theres30-foot-menorah-national-mall-180961553/ (last visited Jan. 12, 2021).\nEvery President since George Bush in 1989 has displayed a menorah\nat the White House. See Jonathan D. Sarna, How Hanukkah Came To\nBe An Annual White House Celebration, Wash. Post (Dec. 4, 2020),\nhttps://www.washingtonpost.com/religion/how-hanukkah-came-to-bean-annual-white-house-celebration/2020/12/04/54960152-364e-11ebb59c-adb7153d10c2_story.html (last visited Jan. 12, 2021); The White\nHouse, Menorah Lighting, https://georgewbush-whitehouse.archives.gov/\n21\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\npresident/holiday/hanukkah/ (last visited Jan. 12, 2021). Recent Presidents have also officially acknowledged other religious holidays including Diwali and Ramadan. See, e.g., The White House, Statements &\nReleases, Presidential Message on Diwali (Nov. 14, 2020), https://\nwww.whitehouse.gov/briefings-statements/presidential-message-diwali/\n(last visited Jan. 12, 2021); The White House, Statements & Releases,\nPresidential Message on Ramadan (May 5, 2019), https://www.\nwhitehouse.gov/briefings-statements/presidential-message-ramadan2019/ (last visited Jan. 12, 2021); Office of the Press Secretary, The\nWhite House, Statement by the President on Diwali (Nov. 4, 2010),\nhttps://obamawhitehouse.archives.gov/the-press-office/2010/11/04/\nstatement-president-diwali (last visited Jan. 12, 2021). These displays\nreflect a consistent and ongoing practice that is in keeping with the\ntradition of accommodating religious holidays established by the\nFounders.\nAll of this history and tradition establishes that religiously significant\nseasonal decorations are entitled to \xe2\x80\x9ca strong presumption of constitutionality.\xe2\x80\x9d Am. Legion, 139 S. Ct. at 2085. As Justice Kennedy explained in\nCounty of Allegheny, the display of such decorations \xe2\x80\x9cfalls well within the\ntradition of government accommodation and acknowledgment of religion\nthat has marked our history from the beginning.\xe2\x80\x9d 492 U.S. at 663 (Kennedy, J., concurring in the judgment in part and dissenting in part). \xe2\x80\x9cIt\ncannot be disputed that government, if it chooses, may participate in\nsharing with its citizens the joy of the holiday season, by declaring public\nholidays, installing or permitting festive displays, sponsoring celebrations\nand parades, and providing holiday vacations for its employees.\xe2\x80\x9d Id. at\n663. The display of religiously significant holiday decorations has \xe2\x80\x9ca\nlongstanding history,\xe2\x80\x9d Am. Legion, 139 S. Ct. at 2089 (plurality opinion),\nand plainly \xe2\x80\x9ccomports with our tradition,\xe2\x80\x9d Town of Greece, 572 U.S. at\n591\xe2\x80\x9392.\nGSA may therefore broaden its policy to allow for the display of religiously significant decorations in federal government buildings, consistent with the Establishment Clause.\nIV.\nYour office has also asked us to provide guidance on \xe2\x80\x9cwhen, where,\nand in what manner\xe2\x80\x9d a broadened policy \xe2\x80\x9cmay or must permit the display\n22\n\n\x0cReligious Seasonal Decorations in Federal Government Buildings\n\nof religiously significant seasonal decorations.\xe2\x80\x9d While such issues are\nchallenging to analyze without the benefit of a concrete proposal, we offer\nhere general guidance about the considerations GSA should keep in mind\nif it formulates a broader policy regarding the display of religiously significant seasonal decorations in federal public buildings. Our guidance\ndraws on the foregoing analysis of the Establishment Clause and also\ntouches on the Free Speech Clause.\nA.\nWe think that the display of a religiously significant seasonal decoration would fall outside the history and tradition canvassed above only if it\n\xe2\x80\x9c\xe2\x80\x98establishe[d] a religion or religious faith, or tend[ed] to do so.\xe2\x80\x99\xe2\x80\x9d County\nof Allegheny, 492 U.S. at 662 (Kennedy, J., concurring in the judgment in\npart and dissenting in part) (quoting Lynch, 465 U.S. at 678). Formal\nestablishments of religion, around the time of the Founding, generally\ninvolved the official endorsement by the State of a particular sect, together with a variable mix of financial support for a particular church, religious compulsion, restrictions on dissenting forms of worship, the use of\nchurch institutions for public functions, and \xe2\x80\x9creligious tests\xe2\x80\x9d for political\nparticipation. See McConnell, Establishment at the Founding, 44 Wm. &\nMary L. Rev. at 2131\xe2\x80\x9381. A seasonal decoration that simply honors and\nrespects the religious traditions of some or many Americans would not\ncome close to having any of the features of a traditional establishment.\nOne cannot \xe2\x80\x9cperceive the Archbishop of Canterbury, the Bishop of Rome,\nor other powerful religious leaders behind every public acknowledgment\nof the religious heritage long officially recognized by the three constitutional branches of government.\xe2\x80\x9d Lynch, 465 U.S. at 686. These decorations would be entitled to \xe2\x80\x9ca strong presumption of constitutionality.\xe2\x80\x9d Am.\nLegion, 139 S. Ct. at 2085.\nBut a presumption is not a guarantee, and the Court has surveyed several features of a religious display that might rebut that presumption and\ntend to establish a religion. First, the display must not \xe2\x80\x9ccoerce or intimidate\xe2\x80\x9d others into religious observance. Town of Greece, 572 U.S. at 589;\nsee also County of Allegheny, 492 U.S. at 662\xe2\x80\x9364 (upholding a seasonal\ndisplay in which \xe2\x80\x9c[n]o one was compelled to observe or participate in any\nreligious ceremony or activity\xe2\x80\x9d). While \xe2\x80\x9c[o]ur institutions presuppose a\n23\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\nSupreme Being,\xe2\x80\x9d they \xe2\x80\x9cmust not press religious observances upon their\ncitizens.\xe2\x80\x9d Van Orden, 545 U.S. at 683 (plurality opinion).\nA passive symbolic display in a federal public building is hardly likely\nto coerce or intimidate observers. Any \xe2\x80\x9c[p]assersby who disagree with the\nmessage conveyed by these displays are free to ignore them, or even to\nturn their backs, just as they are free to do when they disagree with any\nother form of government speech.\xe2\x80\x9d County of Allegheny, 492 U.S. at 664\n(Kennedy, J., concurring in the judgment in part and dissenting in part).\nWhen the Supreme Court has deemed school prayer to violate the Establishment Clause, the Court has done so on the premise that the recitation\nof a prayer during an official school event effectively coerced the participation of the children who were present. See, e.g., Santa Fe Indep. Sch.\nDist. v. Doe, 530 U.S. 290, 310\xe2\x80\x9313 (2000); Lee v. Weisman, 505 U.S. 577,\n592 (1992). In contrast, \xe2\x80\x9c[o]ur tradition assumes that adult citizens, firm\nin their own beliefs, can tolerate and perhaps appreciate a ceremonial\nprayer delivered by a person of a different faith.\xe2\x80\x9d Town of Greece, 572\nU.S. at 584. We think a stronger assumption is warranted for seasonal\ndisplays in federal public buildings, which are even more passive than\ncommunal prayers, and whose principal audience would be adult federal\nemployees. See Van Orden, 545 U.S. at 691\xe2\x80\x9392 (plurality opinion); id.\n702\xe2\x80\x9303 (Breyer, J., concurring).\nA second feature that might tend to establish religion is a systematic\npreference for a particular faith\xe2\x80\x94or a policy that systematically discriminates against one. GSA should ensure that the practice of displaying such\ndecorations \xe2\x80\x9cover time is not \xe2\x80\x98exploited to proselytize or advance any one,\nor to disparage any other, faith or belief.\xe2\x80\x99\xe2\x80\x9d Town of Greece, 572 U.S. at\n583 (quoting Marsh, 463 U.S. at 794\xe2\x80\x9395)); see also County of Allegheny,\n492 U.S. at 664 (Kennedy, J., concurring in the judgment in part and\ndissenting in part) (noting that there was no \xe2\x80\x9crealistic risk that the cr\xc3\xa8che\nand the menorah represent an effort to proselytize or are otherwise the\nfirst step down the road to an establishment of religion\xe2\x80\x9d). If an agency, for\nexample, \xe2\x80\x9cchose to recognize, through religious displays, every significant Christian holiday while ignoring the holidays of all other faiths,\xe2\x80\x9d\nthere could be concern that the religiously significant displays would\nrepresent an \xe2\x80\x9cunmistakable and continual preference for one faith.\xe2\x80\x9d County of Allegheny, 492 U.S. at 664 n.3 (Kennedy, J., concurring in the judgment in part and dissenting in part). But a decision to accommodate the\n24\n\n\x0cReligious Seasonal Decorations in Federal Government Buildings\n\nfaith of Christian workers by honoring Christmas\xe2\x80\x94or another seasonal\nreligious holiday\xe2\x80\x94is no more likely to violate the Establishment Clause\nthan the long-established practice of making such occasions public holidays in the first place.\nAvoiding systematic preference or discrimination does not mean that\nseasonal decorations cannot be associated with a particular faith or school\nof religious thought. Our tradition does not require the religious symbol in\nquestion to be \xe2\x80\x9cnonsectarian or not identifiable with any one religion.\xe2\x80\x9d\nTown of Greece, 572 U.S. at 578. The religious acknowledgments we\nhave surveyed have routinely been linked to a particular faith or philosophy. Legislative prayer is often explicitly Christian. Id. Sunday-closing\nlaws, and the Sundays Excepted Clause reflect an attempt to accommodate the Christian Sabbath. Even appeals to a generic \xe2\x80\x9cGod\xe2\x80\x9d necessarily\nreflect monotheism. See id. at 582 (citing McCreary County, 545 U.S. at\n893 (Scalia, J., dissenting)). Likewise, many of the national holidays that\nour country has traditionally recognized or accommodated are associated\nwith particular faiths, such as Christmas. A practice of recognizing the\nreligious observances of Americans does not tend to establish a religion,\nso long as \xe2\x80\x9cthe practice over time is not \xe2\x80\x98exploited to proselytize or to\nadvance any one,\xe2\x80\x9d or \xe2\x80\x9cdisparage any other, faith or belief.\xe2\x80\x99\xe2\x80\x9d Town of\nGreece, 572 U.S. at 583 (quoting Marsh, 463 U.S. 794\xe2\x80\x9395).\nStill, a new policy permitting the use of religiously significant seasonal\ndecorations will more clearly avoid any constitutional questions if it\nleaves room for religious inclusion\xe2\x80\x94a principle that springs naturally\nfrom the concept of nondiscrimination and the traditions we have described. In American Legion, for example, the Court described the history\nof legislative prayer as reflecting \xe2\x80\x9crespect and tolerance for differing\nviews.\xe2\x80\x9d 139 S. Ct. at 2089. Similarly, in rejecting the proposition that the\nTown of Greece had \xe2\x80\x9ccontravened the Establishment Clause by inviting a\npredominantly Christian set of ministers to lead the prayer,\xe2\x80\x9d the Court\nobserved that the town had \xe2\x80\x9cmade reasonable efforts to identify all of the\ncongregations located within its borders and represented that it would\nwelcome a prayer by any minister or layman who wished to give one.\xe2\x80\x9d\nTown of Greece, 572 U.S. at 585. As described above, the government\xe2\x80\x99s\npractice in the area of religious holidays and decorations has also honored\nthe diversity of American faith and culture\xe2\x80\x94from the official recognition\nand accommodation of a range of holidays to the celebration of those\n25\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\nevents with ritual and symbol on government property. A revised seasonal-decorations policy would be most likely to honor these traditions if it\nsimilarly makes an \xe2\x80\x9chonest endeavor to achieve inclusivity and nondiscrimination.\xe2\x80\x9d Am. Legion, 139 S. Ct. at 2089.\nWe hasten to add, however, that fidelity to the Establishment Clause\ndoes not require religious quotas. In Town of Greece, the Court rejected\nany such requirement of \xe2\x80\x9creligious balancing,\xe2\x80\x9d observing that \xe2\x80\x9c[s]o long\nas the town maintains a policy of nondiscrimination, the Constitution does\nnot require it to search beyond its borders for non-Christian prayer givers.\xe2\x80\x9d 572 U.S. at 585\xe2\x80\x9386. Nor does the Establishment Clause require an\nagency to display secular symbols alongside religious ones\xe2\x80\x94any more\nthan a legislature need balance ceremonial prayer with secular acknowledgments. See Barker v. Conroy, 921 F.3d 1118, 1131 (D.C. Cir. 2019)\n(rejecting the contention that the Establishment Clause requires a legislature to \xe2\x80\x9callow secular as well as religious prayer\xe2\x80\x9d). As we have discussed,\nour tradition is replete with instances in which the government has employed religious symbols associated with only a single faith or religious\nphilosophy. A display of a single decoration associated with one faith\nwould not, for that reason alone, violate the Establishment Clause. The\nEstablishment Clause does not require that an agency display Frank\nCostanza\xe2\x80\x99s Festivus pole\xe2\x80\x94or some other decoration associated with any\nparticular faith or philosophy\xe2\x80\x94alongside every cr\xc3\xa8che or menorah. Instead, it gives agencies significant discretion in selecting displays that are\nreasonably calculated to honor the broader American tradition, and to\nimprove the morale of federal employees.\nB.\nYour office has also asked us the degree to which the PBS policy must\nallow individual employees to display their own religiously significant\nseasonal decorations. The 2018 PBS policy uses the passive voice to state:\n\xe2\x80\x9cseasonal decorations that are \xe2\x80\x98religiously significant in nature\xe2\x80\x99 . . . must\nnot be displayed in public areas of buildings.\xe2\x80\x9d To the extent that this\npolicy forbids private, employee-sponsored religious seasonal displays in\npublic areas, it would raise concerns under the Free Speech Clause of the\nFirst Amendment in some applications.\nThe display of seasonal decorations by the government in federal buildings would generally be government speech, which is not limited by the\n26\n\n\x0cReligious Seasonal Decorations in Federal Government Buildings\n\nFree Speech Clause. Within limits (like the Establishment Clause), the\ngovernment \xe2\x80\x9cis entitled to say what it wishes,\xe2\x80\x9d Rosenberger v. Rector &\nVisitors of Univ. of Va., 515 U.S. 819, 833 (1995), and may choose to\nfund only certain viewpoints, see, e.g., Rust v. Sullivan, 500 U.S. 173, 194\n(1991); Regan v. Taxation With Representation, 461 U.S. 540 (1983). The\nSupreme Court applied this principle in Pleasant Grove City v. Summum,\n555 U.S. 460 (2009), in which a religious organization called Summum\nchallenged the city\xe2\x80\x99s refusal to place a monument to the Seven Aphorisms\nof Summum in a public park along with other permanent, privately donated displays, including a Ten Commandments monument. The Court\nrejected this challenge, ruling that \xe2\x80\x9cthe monuments in Pleasant Grove\xe2\x80\x99s\nPioneer Park represent[ed] government speech\xe2\x80\x9d and that the city was\ntherefore free to choose which monuments it would accept and display.\nId. at 472.\nIn some circumstances, however, the display of seasonal decorations by\ngovernment employees in the workplace would be private speech protected by the First Amendment. When the government establishes a forum for\nprivate speech, even on government property, the government may become subject to free-speech constraints. The Court has long recognized\n\xe2\x80\x9cthat members of the public retain strong free speech rights when they\nventure into public streets and parks,\xe2\x80\x9d which are \xe2\x80\x9cheld in trust for the use\nof the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public\nquestions.\xe2\x80\x9d Id. at 469 (quotations and citations omitted). In these \xe2\x80\x9ctraditional\xe2\x80\x9d public fora, while \xe2\x80\x9c[r]easonable time, place and manner restrictions are allowed,\xe2\x80\x9d the government may not restrict speech on the\nbasis of viewpoint and may restrict speech on the basis of content only to\nthe extent necessary to achieve a compelling government interest. Id.\nThe same rules may apply to areas \xe2\x80\x9cdesignated\xe2\x80\x9d by the government as\npublic fora for expressive activity; the government need not keep such\nfora open indefinitely, but as long as it does, these rules apply. Id. at 469\xe2\x80\x93\n70; Perry Educ. Ass\xe2\x80\x99n v. Perry Local Educators\xe2\x80\x99 Ass\xe2\x80\x99n, 460 U.S. 37, 44\n(1983). A \xe2\x80\x9cnonpublic\xe2\x80\x9d government forum, meanwhile, is a government\n\xe2\x80\x9cspace that \xe2\x80\x98is not by tradition or designation a forum for public communication\xe2\x80\x99\xe2\x80\x9d in which \xe2\x80\x9cthe government has much more flexibility to craft\nrules limiting speech.\xe2\x80\x9d Minn. Voters Alliance v. Manksy, 138 S. Ct. 1876,\n1885 (2018) (quoting Perry, 460 U.S. at 46); Cornelius v. NAACP Legal\n27\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\nDefense & Educ. Fund., Inc., 473 U.S. 788, 802 (1985). 22 Such fora may\nbe \xe2\x80\x9climited to use by certain groups or dedicated solely to the discussion\nof certain topics.\xe2\x80\x9d Summum, 555 U.S. at 470 (citing Perry, 460 U.S. at 46\nn.7); Cornelius, 473 U.S. at 806. In a nonpublic forum, the government\nmay not restrict speech on the basis of viewpoint, and even subject-matter\nlimits \xe2\x80\x9cmust be \xe2\x80\x98reasonable in light of the purpose served by the forum.\xe2\x80\x99\xe2\x80\x9d\nCornelius, 473 U.S. at 806; see also Good News Club v. Milford Cent.\nSch., 533 U.S. 98, 122 (2001) (Scalia, J., concurring).\nThe First Amendment thus imposes some constraints on the government\xe2\x80\x99s discretion to restrict religious expression in a forum it has created\nfor speech. Restricting speech because it is religious generally constitutes\nviewpoint-based discrimination and thus would be unconstitutional in any\ntype of forum, public or nonpublic. See Good News Club, 533 U.S. at\n107\xe2\x80\x9312 (relying on Rosenberger and Lamb\xe2\x80\x99s Chapel v. Center Moriches\nUnion Free Sch. Dist., 508 U.S. 384 (1993)). And even if such a restriction were not viewpoint-based, subject-matter limits on religious\nexpression would be unlikely to be reasonable in a nonpublic forum that is\ngenerally open to nonreligious expression. See, e.g., Good News Club,\n533 U.S. at 122 (Scalia, J., concurring); Tucker v. Cal. Dep\xe2\x80\x99t of Educ., 97\nF.3d 1204, 1215 (9th Cir. 1996) (\xe2\x80\x9cWe conclude that it is not reasonable to\n\n22 The Court has sometimes referred to this entire third category of fora as a \xe2\x80\x9climited\npublic forum.\xe2\x80\x9d Matal v. Tam, 137 S. Ct. 1744, 1763 (2017); Good News Club v. Milford\nCent. Sch., 533 U.S. 98, 106 (2001); id. at 121 (Scalia, J., concurring); Rosenberger, 515\nU.S. at 829. In a recent case, however, the Court suggested that a \xe2\x80\x9climited public forum\xe2\x80\x9d\nmay be a distinct category from a \xe2\x80\x9cnonpublic forum.\xe2\x80\x9d See Walker v. Texas Div. Sons of\nConfederate Veterans, 576 U.S. 200, 216\xe2\x80\x9317 (2015); see also Cornelius, 473 U.S. at 804\n(suggesting that a \xe2\x80\x9climited\xe2\x80\x9d public forum was a type of \xe2\x80\x9cdesignated\xe2\x80\x9d public forum). The\nCourt in Walker described a \xe2\x80\x9climited public forum\xe2\x80\x9d as one in which the government has\naffirmatively \xe2\x80\x9creserv[ed a forum] for certain groups or for the discussion of certain\ntopics.\xe2\x80\x99\xe2\x80\x9d Id. at 215 (quoting Rosenberger, 515 U.S. at 829). It then described a \xe2\x80\x9cnonpublic\nforum\xe2\x80\x9d as one \xe2\x80\x9c\xe2\x80\x98[w]here the government is acting as a proprietor, managing its internal\noperations.\xe2\x80\x99\xe2\x80\x9d Id. (quoting Int\xe2\x80\x99l Soc\xe2\x80\x99y for Krishna Consciousness, Inc. v. Lee, 505 U.S.\n672, 678 (1992)). The courts of appeals have picked up the distinction drawn in Walker.\nSee Freedom from Religion Found. v. Abbott, 955 F.3d 417, 426\xe2\x80\x9327 (5th Cir. 2020);\nCambridge Christian Sch., Inc. v. Fla. High Sch. Athletic Ass\xe2\x80\x99n, Inc., 942 F.3d 1215, 1237\n& n.5 (11th Cir. 2019). Given that we do not address here any particular factual scenario,\nwe do not address any distinction there might be between a \xe2\x80\x9climited public forum\xe2\x80\x9d and a\n\xe2\x80\x9cnonpublic forum\xe2\x80\x9d; in both fora, speech restrictions must be reasonable and viewpointneutral. See, e.g., Freedom from Religion Found., 955 F.3d at 426\xe2\x80\x9327.\n\n28\n\n\x0cReligious Seasonal Decorations in Federal Government Buildings\n\nallow employees to post materials around the office on all sorts of subjects, and forbid only the posting of religious information and materials.\xe2\x80\x9d); Fiedor v. Fla. Dep\xe2\x80\x99t of Fin. Servs., 440 F. Supp. 3d 1303, 1313\xe2\x80\x9314\n(N.D. Fla. Feb. 24, 2020) (\xe2\x80\x9cBanning use of a bulletin board . . . for religious content, when the same content would be permitted if not religious,\xe2\x80\x9d violates the Free Speech Clause of the First Amendment). The\ngovernment does have an interest in avoiding violations of the Establishment Clause, see Good News Club, 533 U.S. at 112\xe2\x80\x9313, but nothing in the\nEstablishment Clause requires excluding private religious expression from\na government forum, see Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 761\xe2\x80\x9363 (1995) (summarizing cases).\nCertain spaces in a government building\xe2\x80\x94such as a lobby, an employee\ncommon area, a bulletin board, or interior walls\xe2\x80\x94could in some circumstances be nonpublic fora for the private speech of government employees. See, e.g., Preminger v. Principi, 422 F.3d 815, 824 (9th Cir. 2005)\n(concluding that a Veterans Affairs long-term nursing facility is a nonpublic forum, because the government did not \xe2\x80\x9cexpressly dedicate[] the\nproperty for expressive conduct\xe2\x80\x9d); Tucker, 97 F.3d at 1216 (treating\ncubicles and office doors of a state education building as nonpublic fora).\nOther government spaces could even be public fora. See, e.g., ChabadLubavitch v. Miller, 5 F.3d 1383, 1388\xe2\x80\x9391 (11th Cir. 1993) (treating the\nrotunda of a state capitol as a public forum and holding unconstitutional\nthe exclusion of a menorah from that space). The PBS policy does not\ndefine the terms \xe2\x80\x9cpublic space\xe2\x80\x9d or \xe2\x80\x9cpublic area.\xe2\x80\x9d If it did bar the display\nof religiously significant decorations by a federal employee in a government forum for private speech, then the policy could raise the First\nAmendment problems described above. GSA may wish to keep these\nconcerns in mind in formulating a revised PBS policy.\nV.\nGSA may, consistent with fiscal law and the First Amendment, broaden\nits policy governing the purchase and display of seasonal decorations in\nthe public spaces of federal properties to allow for the display of religiously significant seasonal decorations that are reasonably calculated to\nimprove employee morale. Religious seasonal displays fall within the\ntraditions of our country and do not, without more, contravene the Establishment Clause. The PBS policy forbidding \xe2\x80\x9creligiously significant\xe2\x80\x9d\n29\n\n\x0c45 Op. O.L.C. __ (Jan. 15, 2021)\n\ndisplays is not required by the Establishment Clause. In certain applications, the PBS policy may raise questions under the Free Speech Clause, if\nit prohibited employees from displaying religious decorations in a government forum for private speech.\nHENRY C. WHITAKER\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n30\n\n\x0c'