The Virginia government's main legal adviser says local governmental entities are "never" categorically compelled to prohibit holiday displays, including those incorporating recognizably religious symbols.
"[G]overnments enjoy considerable discretion in accommodating the religious expression of their citizens and employees and in their own recognition of traditional seasonal holidays," explained Virginia Attorney General Kenneth T. Cuccinelli in an official opinion made public Tuesday.
"It is further my opinion that displays depicting the birth of Jesus Christ are permissible provided the government ensures appropriate content and context," he added.
Cuccinelli, who was elected to office last November and sworn in two months later, was responding to a inquiry from House of Delegates member Robert G. Marshall, who asked whether Loudoun County – under the U.S. and Virginia constitutions and the state's present statutes – is compelled to prohibit holiday displays on public property.
In his footnotes-loaded response, Cuccinelli recalled the historical context in which the Virginia Establishment Clause was drafted and noted how the U.S. 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," Cuccinelli wrote in his five-page opinion.
Applying the principles he referenced, Cuccinelli concluded that 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," the attorney general continued. "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," he added.
In conclusion, Cuccinelli acknowledged the possibility for a locality to violate the Establishment Clause by exhibiting or authorizing Christmas and other holiday displays.
But he said such displays "are not per se impermissible provided that the County is careful with respect to content and context."
Notably, official opinions by the attorney general are not binding either on the requester or on the courts but represent the attorney general's analysis of the current state of the law based on his review of existing law and relevant prior court decisions.
The opinions can, however, be cited in court and courts will give them due consideration. Only persons authorized by statute, such as a member of the General Assembly or state agency, can ask the attorney general for an official opinion on the law.