It’s almost that time of year again, and the United States Postal Service (USPS) is marking the occasion by releasing new “A Visit from Saint Nick” forever stamps. And for those mail consumers either not celebrating Christmas or celebrating other holidays in addition to Christmas, there are also stamps celebrating Hanukkah, Kwanzaa, and Diwali.

Some folks aren’t happy with the religious figures and phrases that appear on the USPS’ stamps and cite the Establishment Clause (which prohibits the governmental establishment of religion) as their reason for concern. The agency could alleviate those issues by allowing consumers to make their own customized, religious stamps in lieu of official, USPS-ordained designs. Unfortunately, America’s mail carrier barred religious content on customized stamps and ended the Customized Postage program altogether when faced with free speech and religious liberty lawsuits. The USPS should step back from their postal patronage of religion and let all Americans express themselves as they wish.

Starting in 2004, the USPS permitted private businesses to sell customized postage to consumers. Everyone benefited from this arrangement including the agency, which charged annual licensing fees for the right to resell postage and didn’t have to pay any money for the production, distribution, or promotion of customized postage. Meanwhile, consumers were able to get the images they wanted on stamps instead of the limited choices offered by the agency. Customized stamps with religious content were fair game until 2017 when the USPS promulgated regulations forbidding any depiction of religious content.

The agency’s decision to forbid religious imagery was met with criticism at the time. Plenty of commentators and stakeholders warned that the prohibition would create legal problems for the agency. The issue is that the USPS is a federal agency and the Religious Freedom Restoration Act stipulates that the “[g]overnment shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability...” The government can limit an individual’s free exercise rights, but only if there’s a compelling government interest at stake and the limitation is the least restrictive way to advance that interest.

The agency knew that they would never be able to meet that standard. After all, the government was placing a substantial burden on a religiously motivated act by barring all religious content on customized stamps. And, any “compelling interest” asserted by the USPS wouldn’t make much sense, since the agency itself regularly prints and circulates religious stamps. Faced with an impossible legal predicament of its own making, the agency pulled the plug on its Customized Postage program in 2020. Prominent custom postage printer Stamps.com was none too pleased and submitted comments to the Postal Regulatory Commission challenging the decision. The company correctly noted that the customized stamp market is worth at least $15 million per year, which the USPS shares with private stamp sellers. That total could quickly grow if the agency restarted the program and lifted the ban on religious stamps.

It’s even possible that the USPS is legally obligated to restart the program. 39 USC §404a prevents the agency from “establish[ing] any rule or regulation (including any standard) the effect of which is to preclude competition or establish the terms of competition unless the Postal Service demonstrates that the regulation does not create an unfair competitive advantage for itself or any entity funded (in whole or in part) by the Postal Service…” The USPS has its own “Picture Permit Indicia program” for producing (limited) custom postage. Ending the privately-run Customized Postage program certainly gives the appearance of creating an “unfair competitive advantage” for the agency.

The USPS is therefore on shaky legal ground until it restarts the Customized Postage program. And, the agency is on shaky financial ground after having lost more than $80 billion over the past 15 years.

Letting consumers print religiously themed stamps is not only the right and legal thing to do, but also a small step toward financial sustainability. The USPS can spread non-denominational holiday cheer by giving its consumers more freedom.

Ross Marchand is a senior fellow for the Taxpayers Protection Alliance.

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