Must a Virginia county prohibit holiday displays with religious symbols on public property, and if not, what conditions must the county follow?

Plain-English summary

A delegate asked whether Loudoun County had to prohibit holiday displays on public property and, if not, under what conditions religious holiday displays (including ones depicting the birth of Jesus Christ) would be permitted.

The AG concluded that local governments are not categorically required to prohibit holiday displays, and that displays with religious symbols can be permissible if the government handles content and context carefully.

The AG addressed both constitutional sources:

Virginia Constitution Article I, § 16. The AG argued, based on the 1776 disestablishment statutes and the text of § 16 itself, that the Virginia Establishment Clause is implicated only by state action directly supporting or preferring a particular church. It does not forbid a display merely because its content is religious. It does forbid favoritism toward a particular denomination. The Supreme Court of Virginia in Virginia Coll. Bldg. Auth. v. Lynn, 260 Va. 608 (2000), said the Court is "informed by" U.S. Supreme Court Establishment Clause cases in construing § 16, but has not held the two are identical.

Federal Establishment Clause. The AG noted that U.S. Supreme Court Establishment Clause jurisprudence is "confusing and confused" (citing Doe v. Duncanville, 994 F.2d 160 (5th Cir. 1993)), with conflicting outcomes in Van Orden and McCreary County (both decided same day in 2005). But two principles are clear: (1) governmental accommodation of religion is permitted, sometimes required; and (2) government holiday displays can be valid depending on content.

Then the AG walked through several practical rules:

• Personal religious items. Employees may display religious items in their personal space in certain circumstances (Warnock v. Archer, 380 F.3d 1076 (8th Cir. 2004)).
• Public forums. If the County has already provided a public or limited public forum, it generally cannot exclude a religious display based solely on content (Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995)).
• Government's own displays. The County can recognize traditional seasonal holidays, including Christmas, if overtly Christian symbols are balanced with other religious and secular symbols so reasonable observers do not perceive a religious statement (Lynch v. Donnelly, 465 U.S. 668 (1984); ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999)).
• Secular accompaniment. Lights, candy canes, wreaths, poinsettias, fir trees, snowflakes, ribbons should raise no serious constitutional objection.
• Fourth Circuit test. The Fourth Circuit combines Lemon v. Kurtzman's three-prong test with the government endorsement test, asking whether the display "suggests to the reasonable, informed observer that [government] is endorsing religion" (Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003)).
• Limits. A nativity scene standing alone as the only clearly identifiable symbol of a city's holiday celebration may violate the Establishment Clause (ACLU v. Birmingham, 791 F.2d 1561 (6th Cir. 1986)).

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The U.S. Supreme Court's Establishment Clause framework has shifted significantly since 2010. American Legion v. American Humanist Ass'n, 588 U.S. 29 (2019), substantially modified the analysis for long-standing displays. Kennedy v. Bremerton School District, 597 U.S. 507 (2022), all but abandoned the Lemon test in favor of a historical practices analysis. A current display question must be analyzed under the Court's current jurisprudence, not the Lemon-plus-endorsement framework the 2010 opinion relied on.

Common questions

Can a Virginia city put up a Nativity scene at City Hall?
Under the law as it stood in 2010: yes, if the display included secular and other religious symbols to communicate that the city was recognizing the holiday rather than endorsing a particular religion. The display couldn't be the city's only seasonal recognition; it had to be part of a broader celebration.

Can the government refuse a private religious display in a public forum?
Generally no, if the space is already an open public forum. Pinette held that the government cannot refuse on Establishment Clause grounds to display a religious symbol when the nature of the public forum is known or publicly announced.

Can a public employee display religious items at their desk?
Often yes. Warnock v. Archer held that a school superintendent's display of a personal Bible and a framed scriptural quotation in his office did not violate the Establishment Clause. Personal space within the workplace gets more accommodation than government-sponsored speech.

What's the difference between a "Christmas tree" and a "holiday tree"?
The opinion does not require either label. What matters is whether the display, taken as a whole, communicates religious endorsement. A fir tree with lights is generally considered a secular holiday symbol.

How does the Lemon test work?
The Lemon test (Lemon v. Kurtzman, 403 U.S. 602 (1971)) asks: (1) Does the government action have a secular purpose? (2) Is its principal or primary effect one that neither advances nor inhibits religion? (3) Does it avoid excessive entanglement with religion? The Fourth Circuit folded the endorsement test into prong (2). The U.S. Supreme Court has since moved away from Lemon, but it remained binding precedent in the Fourth Circuit in 2010.

Background and statutory framework

The Virginia Establishment Clause, Va. Const. art. I, § 16, has historical roots in the 1776 partial disestablishment of the church of Virginia. The Clause's original concern was to prevent state-supported denominations and religious tests, not to prohibit symbolic acknowledgment of religion. Virginia Coll. Bldg. Auth. v. Lynn, 260 Va. 608 (2000), said the Virginia Supreme Court is "informed by" federal Establishment Clause jurisprudence when construing § 16.

The Federal Establishment Clause, U.S. Const. amend. I, has produced a fractured doctrine. Lemon v. Kurtzman, 403 U.S. 602 (1971), set up the traditional three-prong test. Lynch v. Donnelly, 465 U.S. 668 (1984), introduced the "endorsement" test. Pinette, 515 U.S. 753 (1995), addressed religious displays in public forums. Van Orden v. Perry, 545 U.S. 677 (2005), and McCreary County v. ACLU, 545 U.S. 844 (2005), reached opposite results on Ten Commandments displays the same day.

In the Fourth Circuit, the prevailing 2010 framework combined Lemon and endorsement (Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003); Lambeth v. Bd. of Comm'rs, 407 F.3d 266 (4th Cir. 2005)). Holiday display cases include Schundler (display with creche, menorah, Christmas tree, Santa, snowman, Kwanzaa symbols, accompanied by signs of cultural diversity — upheld), Mather v. Mundelein, 864 F.2d 1291 (7th Cir. 1989) (nativity scene in park near city hall with secular accompaniments — upheld), Wilkinson, 895 F.2d 1098 (6th Cir. 1995) (rustic stable without figures on capitol grounds with public-forum disclaimer — upheld), Birmingham, 791 F.2d 1561 (6th Cir. 1986) (lone nativity scene as city's only seasonal display — struck down).

The opinion also flagged that Pinette effectively overruled the Fourth Circuit's earlier Smith v. County of Albemarle, 895 F.2d 953 (4th Cir. 1990) (private club display on public property — barred even with disclaimer).

Citations

• U.S. Const. amend. I
• Va. Const. art. I, § 16
• Virginia Coll. Bldg. Auth. v. Lynn, 260 Va. 608, 626, 538 S.E.2d 682, 691 (2000)
• Doe v. Duncanville Indep. Sch. Dist., 994 F.2d 160, 166 n.7 (5th Cir. 1993)
• Van Orden v. Perry, 545 U.S. 677 (2005)
• McCreary County v. ACLU, 545 U.S. 844 (2005)
• Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947)
• Lynch v. Donnelly, 465 U.S. 668, 673 (1984)
• Zorach v. Clauson, 343 U.S. 306, 314, 315 (1952)
• Illinois ex rel. McCollum v. Bd. of Education, 333 U.S. 203, 211 (1948)
• Warnock v. Archer, 380 F.3d 1076, 1082 (8th Cir. 2004)
• Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995)
• Chabad-Lubavitch of Georgia v. Miller, 5 F.3d 1383, 1387-92 (11th Cir. 1993)
• ACLU v. Wilkinson, 895 F.2d 1098 (6th Cir. 1995)
• ACLU v. Schundler, 168 F.3d 92, 95 (3d Cir. 1999)
• Mather v. Mundelein, 864 F.2d 1291, 1292-93 (7th Cir. 1989)
• Mellen v. Bunting, 327 F.3d 355, 370 (4th Cir. 2003)
• Lemon v. Kurtzman, 403 U.S. 602, 613 (1971)
• Lambeth v. Bd. of Comm'rs, 407 F.3d 266 (4th Cir. 2005)
• Elewski v. City of Syracuse, 123 F.3d 51 (2d Cir. 1997)
• ACLU v. Birmingham, 791 F.2d 1561 (6th Cir. 1986)
• Smith v. County of Albemarle, 895 F.2d 953 (4th Cir. 1990)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-067-Marshall.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

August 20, 2010

The Honorable Robert G. Marshall
Member, House of Delegates
Post Office Box 421
Manassas, Virginia 20108-0421

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Delegate Marshall:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You inquire whether Loudoun County, under the U.S. and Virginia constitutions and our present statutes, is compelled to prohibit holiday displays, both religious and non-religious, on public property; and if not so compelled, under what conditions religious holiday displays, including those honoring the birth of Jesus Christ, are permitted.

Response

It is my opinion that a local governmental entity is never categorically compelled to prohibit holiday displays, including those incorporating recognizably religious symbols, because governments enjoy considerable discretion in accommodating the religious expression of their citizens and employees and in their own recognition of traditional seasonal holidays. It is further my opinion that displays depicting the birth of Jesus Christ are permissible provided the government ensures appropriate content and context.

Applicable Law and Discussion

The First Amendment to the Constitution of the United States declares that "Congress shall make no law respecting an establishment of religion." Article I, § 16 of the Constitution of Virginia provides that

the General Assembly shall not prescribe any religious test whatever, or confer any peculiar privileges or advantages on any sect or denomination, or pass any law requiring or authorizing any religious society, or the people of any district, to levy on themselves or others, any tax for the erection or repair of any house of public worship, or for the support of any church or ministry; but it shall be left free to every person to select his religious instructor, and to make for his support such private contract as he shall please.

Turning first to the Virginia Constitution, the original meaning of the words "respecting an establishment of religion" is probably reflected in Chapter II of the October 1776 Acts of the General Assembly, which gives practical effect to § 16 of the Virginia Declaration of Rights of June 12, 1776. The October enactment partially disestablished the church of Virginia by striking down "several oppressive acts of parliament respecting religion." It also freed dissenters from taxation that supported the church so that "equal liberty, as well religious as civil," would prevail. That act also ended statutory salaries for the Anglican clergy. The types of laws "respecting religion" referenced were those designed to maintain a state church, including provisions requiring church attendance and prescribing modes of worship.

The Virginia Establishment Clause adopted by the Convention of 1829-30 reflects an understanding that religious equality and denominational nondiscrimination lie at the core of establishment concerns and doctrine, along with prohibition of religious tests and taxation for the support of religion. Joseph Story contemporaneously wrote of the Federal Establishment Clause: "The real object of the amendment was . . . to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government."

Thus, viewed from a reasonable textualist and original understanding perspective, it is doubtful that the Virginia Establishment Clause limits holiday displays on public property. Instead, the Virginia Establishment Clause is implicated only by state action directly supporting or preferring a particular church. For purposes of the Virginia Constitution, then, Article I, § 16 does not forbid a display merely because of its religious content. This provision, however, does forbid religious favoritism toward a particular sect or denomination.

Current Federal Establishment Clause doctrine, on the other hand, does address governmental displays with religious content. Unfortunately, the United States Supreme Court's contemporary Establishment Clause jurisprudence is "confusing and confused." In analyzing Establishment Clause jurisprudence as it now exists two conclusions are nonetheless clear: (1) governmental accommodation of religion is constitutionally permitted, and in some circumstances is required; and (2) holiday displays erected by governments can be validly exhibited depending on content.

Constitutional accommodation of religion begins in the text itself and its history is deeply rooted. The oaths found at Article II, § 1, cl. 8 and Article VI, cl. 3 permit affirmation as an alternative to swearing. This option is given to "known denominations of men, who are conscientiously scrupulous of taking oaths (among which is that pure and distinguished sect of Christians, commonly called Friends, or Quakers)." Nondenominational Sunday church services were conducted in the chamber of the United States House of Representatives for a considerable period, and while President, Thomas Jefferson was in regular attendance. Likewise James Madison, the sponsor of the First Amendment in Congress, attended when he succeeded to the Presidency.

The practice of governmental accommodation of religion also is embedded in case law and statutes. Applying the Establishment Clause to the States for the first time in Everson v. Board of Education, the Court recognized that the Clause "requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary." Although Everson accepted the concept of a "wall of separation between church and state," taken from Jefferson's letter to the Danbury Baptist Association, the Court explained in Lynch v. Donnelly that the "metaphor itself is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state." That is so because "[i]t has never been thought either possible or desirable to enforce a regime of total separation . . . ." Not only does the Constitution not "require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any."

Applying these principles, Loudoun County must accommodate religious items within the personal space of employees under certain circumstances. In addition, where the County already has provided a public forum or limited public forum, it will usually lack the right to exclude a religious display of reasonable duration based solely upon content. Even where no such forum previously has been created, the County is free to create a nondiscriminatory forum for recognition of holidays, including Christmas, if it makes clear that the County itself is not communicating a religious message.

Moreover, irrespective of religious accommodation, the County is free to communicate its own recognition of holidays, including Christmas, as long as overtly Christian symbols are balanced with other religious and secular ones in a way that communicates to reasonable, informed observers that the County is not making a religious statement. Because secular symbols can insulate innately religious symbols from constitutional attack, decoration of public buildings with such secular items as lights, candy canes, wreaths, poinsettias, fir trees, snowflakes, and red and green ribbons should raise no serious constitutional objection.

In adjudicating public display cases, the Fourth Circuit employs a combination of the Lemon and government endorsement tests. The Lemon three-prong test seeks to determine whether a governmental action (1) has a secular purpose, (2) whether its principal or primary effect is one that neither advances or inhibits religion, and (3) whether the action threatens excessive governmental entanglement with religion. Although Mellen initially identified Lemon and governmental endorsement as competing tests, it then merged the governmental endorsement test into the second prong of Lemon by holding that state action which "suggests to the reasonable, informed observer that [government] is endorsing religion," demonstrates that the challenged action has the principal or primary effect of advancing religion. Although the inquiry is necessarily fact-specific, a holiday display that is not exclusively religious and one that is a part of a broader celebration of the holiday season would satisfy the Lemon test.

In sum, although it is certainly possible for a locality to violate the Establishment Clause by exhibiting or authorizing Christmas and other holiday displays, such displays are not per se impermissible provided that the County is careful with respect to content and context.

Conclusion

Accordingly, it is my opinion that a local governmental entity is never categorically compelled to prohibit holiday displays, including those incorporating recognizably religious symbols, because governments enjoy considerable discretion in accommodating the religious expression of their citizens and employees and in their own recognition of traditional seasonal holidays. It is further my opinion that displays depicting the birth of Jesus Christ are permissible provided the government ensures appropriate content and context.

With warmest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General