After banning customized stamps with religious content in 2017, the USPS got rid of its custom offerings altogether last year. It’s time to bring them back.
After banning customized stamps with religious content in 2017, the USPS got rid of its custom offerings altogether last year. It's time to bring them back.
I t’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. 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’s stamps, citing 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 first barred religious content on customized stamps and then ended its Customized Postage program altogether when faced with free-speech and religious-liberty suits.
That was a mistake. 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 permitted until 2017 when, as mentioned above, the USPS promulgated regulations forbidding any depiction of religious content.
The agency’s decision to forbid religious imagery was met with legal action. The issue is that the USPS is a federal agency, and the Religious Freedom Restoration Act stipulates that the “government 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 it 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 submitted comments to the Postal Regulatory Commission challenging the decision. The company noted that the customized-stamp market is worth at least $15 million per year (as of 2019), 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 still 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 may well be on shaky legal ground until it restarts the Customized Postage program, and does so in full. Meanwhile, 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.