Can Tennessee issue a 'Jesus is Lord' specialty license plate even if the proceeds go to a secular charity?

Plain-English summary

A state senator asked whether Tennessee could create a new specialty earmarked license plate under Tenn. Code Ann. §§ 55-4-201 et seq. with the message "Jesus is Lord," with proceeds directed not to a religious institution but to a secular nonprofit such as the Children's Advocacy Center. The hope was that funneling the proceeds away from a religious entity would defuse the Establishment Clause problem.

The AG concluded it would not. The reason is a doctrine the Sixth Circuit established in ACLU v. Bredesen, 441 F.3d 370 (6th Cir. 2006): the message on a Tennessee specialty plate is government speech. Even though the plate is mounted on a private vehicle and chosen by the driver, the government has approved the message and is disseminating it. That doctrine cut both ways. In Bredesen it saved the "Choose Life" plate from a free-speech challenge (because the government can choose what its own speech says). In a religious-message context, government speech runs straight into the Establishment Clause, which the U.S. Supreme Court made explicit in Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 129 S.Ct. 1125 (2009): "government speech must comport with the Establishment Clause."

Tennessee's AG Office had already opined three times that specialty plates connected to specific religious entities or messages would be unconstitutional: Op. Tenn. Att'y Gen. 09-82 (Church of God in Christ); Op. Tenn. Att'y Gen. 09-110 (The Lord's Child); Op. Tenn. Att'y Gen. 10-34 (Catholic Charities). The 2010 opinion brings the same analysis to the "Jesus is Lord" proposal.

Two doctrinal points carry the analysis. First, the Establishment Clause prohibits the government from preferring any one religious creed over others. As the Supreme Court said in County of Allegheny v. ACLU, 492 U.S. 573, 605 (1989), the clause "certainly means that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions)." A "Jesus is Lord" plate is a sectarian Christian creedal statement; the State cannot endorse it.

Second, the AG applied the Sixth Circuit's "endorsement test" version of the Lemon analysis: a reasonable observer seeing the state-issued plate with "Jesus is Lord" on it would believe the State of Tennessee is endorsing the religious message. That conclusion is reinforced by Doe v. Wilson County School System, 564 F.Supp.2d 766, 792-93 (M.D. Tenn. 2008), which struck down school actions that conveyed favoritism toward a particular religious belief.

The secular-charity proceeds piece does change one part of the analysis. Where proceeds flow directly to a religious institution (as in the earlier 09-82, 09-110, and 10-34 opinions), there is a separate Establishment Clause concern about government aid advancing religion. The 2010 opinion notes that if proceeds genuinely go only to a secular nonprofit, the "advancing religion" prong is not triggered by the flow of money. But the message itself remains unconstitutional government speech, independent of where the proceeds go.

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 Establishment Clause doctrine has continued to develop since 2010. American Legion v. American Humanist Association, 588 U.S. 29 (2019), softened the Court's approach in some contexts. The Lemon test was significantly diminished in Kennedy v. Bremerton School District, 597 U.S. 507 (2022), which directed courts to look at history and tradition rather than apply Lemon. Anyone evaluating a current Tennessee specialty-plate proposal should look at the current Sixth Circuit case law and current Supreme Court doctrine, not the Lemon/endorsement framework as it stood in 2010. The bottom line of the 2010 opinion (government cannot use its own speech to endorse one religious creed over others) likely survives the doctrinal updates, but the analytical framework has changed.

Common questions

Q: What is a Tennessee specialty earmarked license plate?
A: Under Tenn. Code Ann. §§ 55-4-201 et seq., the legislature can authorize specialty plates that display a particular message, image, or organization affiliation. Drivers pay an additional fee for the plate, and a portion of that fee is earmarked to a designated organization or cause. The legislature has authorized hundreds over the years (university affiliations, conservation causes, the "Choose Life" plate, etc.).

Q: Why is the message on a specialty plate considered "government speech"?
A: Because the state authorizes, manufactures, issues, and regulates the plate. The Sixth Circuit reasoned in ACLU v. Bredesen that "there is no reason to doubt that a group's ability to secure a specialty plate amounts to state approval." A driver chooses to display the plate, but the message itself has been adopted by the state.

Q: Does treating the plate as government speech help or hurt the constitutional analysis?
A: It helps the state defend against Free Speech Clause challenges, because the government can pick what its own speech says without giving "equal time" to opposing viewpoints. But it hurts the state on Establishment Clause analysis, because government speech is subject to the Establishment Clause. So a "Choose Life" plate survives a viewpoint-discrimination challenge but a "Jesus is Lord" plate fails the no-religious-endorsement rule.

Q: Does sending the proceeds to a secular charity fix the problem?
A: Not in the AG's view. Diverting the proceeds away from a religious institution removes the separate "advancing religion through state aid" concern, but the message on the plate is independently unconstitutional. Government speech endorsing a sectarian creed violates the Establishment Clause regardless of who gets the proceeds.

Q: Why does the AG cite the same conclusion in three earlier opinions?
A: Because the legislature periodically proposed religiously-themed plates and the AG was repeatedly asked the same constitutional question. The 09-82 (Church of God in Christ), 09-110 (The Lord's Child), and 10-34 (Catholic Charities) opinions all reached the same conclusion: religiously-affiliated specialty plates fail Establishment Clause scrutiny. The 10-52 opinion adds that the religious message itself, even if separated from any religious institution's funding, is enough to invalidate the plate.

Q: Does the Tennessee Constitution's religious-freedom provision matter independently?
A: It does. Article I, Section 3 of the Tennessee Constitution provides that "no preference shall ever be given, by law, to any religious establishment or mode of worship." Tennessee courts have described this language as a "stronger guarantee of religious freedom" than the First Amendment (per Planned Parenthood of Middle Tennessee v. Sundquist, 38 S.W.3d 1, 13 (Tenn. 2000)). Even if the federal analysis somehow allowed the plate, the Tennessee Constitution would independently bar it.

Q: What about the national motto "In God We Trust"? Doesn't that survive the Establishment Clause?
A: Yes, under the Gaylor v. United States, 74 F.3d 214 (10th Cir. 1996), holding. But the Supreme Court has expressly distinguished general nonsectarian references to "God" from a "preference for one particular sect or creed." County of Allegheny v. ACLU, 492 U.S. 573, 605 (1989). "Jesus is Lord" is sectarian Christian language; it does not fall on the "ceremonial deism" side of the line.

Background and statutory framework

Tennessee's specialty earmarked license plate program (Tenn. Code Ann. §§ 55-4-201 et seq.) lets the legislature authorize plates that display a specific message or affiliation. Buyers pay additional fees; a designated organization receives a portion of the proceeds. By 2010, Tennessee had authorized dozens of such plates. The program raises Establishment Clause questions when proposed plates involve religious messages or religious organizations.

The government-speech doctrine. The Sixth Circuit's foundational decision is ACLU v. Bredesen, 441 F.3d 370 (6th Cir. 2006), cert. denied, 548 U.S. 906 (2006). Bredesen challenged Tennessee's "Choose Life" plate on the ground that the state had to either offer a "Choose Choice" plate or take the "Choose Life" plate down (an Equal Access / Free Speech theory). The Sixth Circuit held that the plate's message is government speech and that the government can choose what its own messages say. That doctrine was confirmed by the U.S. Supreme Court at the federal level in Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) (monument in a city park is government speech and need not be paired with monuments expressing competing viewpoints), and later extended to specialty plates expressly in Walker v. Texas Division, Sons of Confederate Veterans, 576 U.S. 200 (2015) (decided after this opinion).

The Establishment Clause limit. Summum expressly noted that "government speech must comport with the Establishment Clause." So while the government can choose its messages, it cannot choose religious-endorsement messages. The Lemon test, as later refined by the "endorsement test" in Adland v. Russ, 307 F.3d 471 (6th Cir. 2002), asks whether a reasonable observer would view the government action as endorsing religion. The 2010 AG opinion treats this as the operative test in the Sixth Circuit.

The sectarian-creed limit. County of Allegheny v. ACLU, 492 U.S. 573 (1989), held a city's display of a Christian Nativity scene on courthouse stairs unconstitutional. The Court drew a sharp line: history may legitimate "nonsectarian references to religion by government" (like "In God We Trust"), but it cannot legitimate practices that show "the government's allegiance to a particular sect or creed." 492 U.S. at 603, 605. "Jesus is Lord" is sectarian Christian creedal language and falls on the wrong side of that line.

The Tennessee constitutional overlay. Article I, Section 3 of the Tennessee Constitution provides that "no preference shall ever be given, by law, to any religious establishment or mode of worship." Tennessee courts treat this as a stronger guarantee than the First Amendment, per Planned Parenthood of Middle Tennessee v. Sundquist, 38 S.W.3d 1 (Tenn. 2000), and State ex rel. Comm'r of Transp. v. Medicine Bird, 63 S.W.3d 734 (Tenn. Ct. App. 2001). So even if the federal analysis somehow allowed the plate, the Tennessee Constitution would independently prohibit it.

The proceeds question. In the earlier 09-82, 09-110, and 10-34 opinions, the proceeds were going to religious institutions or their charities. That triggered a separate Establishment Clause concern under Roemer v. Board of Public Works of Maryland, 426 U.S. 736 (1976), and Hunt v. McNair, 413 U.S. 734 (1973), about state aid flowing to pervasively religious institutions. The 10-52 opinion notes that if proceeds genuinely go only to a secular nonprofit like the Children's Advocacy Center, the proceeds-flow concern is not triggered. But the message on the plate is independently unconstitutional government speech, so the proposal still fails.

The structural takeaway of the four opinions taken together: Tennessee can sell secular specialty plates that fund secular causes; it can sell secular specialty plates that fund religious-affiliated charities if it does so on a viewpoint-neutral basis; it cannot sell plates that display religious-endorsement messages, regardless of where the proceeds go.

Citations and references

Statutes:

• Tenn. Code Ann. §§ 55-4-201 et seq. (specialty earmarked license plates)

Constitutional provisions:

• U.S. Const. amend. I (Establishment Clause)
• U.S. Const. amend. XIV
• Tenn. Const. art. I, § 3 (religious preference)

Cases:

• ACLU v. Bredesen, 441 F.3d 370 (6th Cir. 2006), cert. denied, 548 U.S. 906 (2006)
• Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 129 S.Ct. 1125 (2009)
• Lee v. Weisman, 505 U.S. 577 (1992)
• Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947)
• Lemon v. Kurtzman, 403 U.S. 602 (1971)
• Van Orden v. Perry, 545 U.S. 677 (2005)
• Adland v. Russ, 307 F.3d 471 (6th Cir. 2002)
• Doe v. Wilson County School System, 564 F.Supp.2d 766 (M.D. Tenn. 2008)
• County of Allegheny v. ACLU, 492 U.S. 573 (1989)
• Gaylor v. United States, 74 F.3d 214 (10th Cir. 1996)
• Planned Parenthood of Middle Tennessee v. Sundquist, 38 S.W.3d 1 (Tenn. 2000)
• Carden v. Bland, 199 Tenn. 665, 288 S.W.2d 718 (1956)
• State ex rel. Comm'r of Transp. v. Medicine Bird, 63 S.W.3d 734 (Tenn. Ct. App. 2001)
• Martin v. Beer Board for City of Dickson, 908 S.W.2d 941 (Tenn. Ct. App. 1995)
• Steele v. Waters, 527 S.W.2d 72 (Tenn. 1975)
• Roemer v. Board of Public Works of Maryland, 426 U.S. 736 (1976)
• Hunt v. McNair, 413 U.S. 734 (1973)

Related Tennessee AG opinions:

• Op. Tenn. Att'y Gen. 10-34 (March 16, 2010) (Catholic Charities plate)
• Op. Tenn. Att'y Gen. 09-82 (May 13, 2009) (Church of God in Christ plate)
• Op. Tenn. Att'y Gen. 09-110 (June 8, 2009) (The Lord's Child plate)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-052.pdf

Original opinion text

April 15, 2010

Opinion No. 10-52

Establishment of New Specialty Earmarked License Plate Asserting that "Jesus is Lord"

QUESTION

Would the establishment of a new specialty earmarked license plate, pursuant to Tenn. Code Ann. §§ 55-4-201, et seq., asserting that "Jesus is Lord" and allocating certain proceeds from the sale of these license plates exclusively to further the mission of a non-profit non-religiously affiliated entity violate any federal or state constitutional provisions, especially the provisions against the establishment of religion?

OPINION

Yes, we think a court would conclude that the establishment of a new specialty earmarked license plate asserting that "Jesus is Lord" violates the federal and state constitutional provisions against the establishment of religion.

ANALYSIS

This Office has been asked to opine on the constitutional validity of establishing a new specialty earmarked license plate, pursuant to Tenn. Code Ann. §§ 55-4-201, et seq., asserting that "Jesus is Lord." The funds produced from the sale of the new license plates would be allocated exclusively to further the mission of a non-profit, non-religiously affiliated entity, such as the Children's Advocacy Center.

Portions of the analysis in prior Attorney General opinions concerning specialty earmarked license plates involving religiously affiliated entities and messages are applicable to the present question. In Op. Tenn. Att'y Gen. 10-34 (March 16, 2010), this Office opined that, under current law, a court would conclude that the establishment of a new specialty earmarked license plate recognizing Catholic Charities would be found by a court to violate the federal and state constitutional provisions prohibiting the establishment of religion. Similarly, in Op. Tenn. Att'y Gen. 09-82 (May 13, 2009), this Office opined that a court would conclude that the establishment of a new specialty earmarked license plate recognizing a specific religious entity would be found by a court to violate the federal and state constitutional provisions prohibiting the establishment of religion. Proceeds from the sale of the proposed specialty earmarked license plate recognizing the Church of God in Christ would have been used exclusively to further the mission of that church's charities. Likewise, in Op. Tenn. Att'y Gen. 09-110 (June 8, 2009), this Office opined that the establishment of a new specialty earmarked license plate recognizing a specific religious charity, The Lord's Child, would be found by a court to violate the federal and state constitutional provisions prohibiting the establishment of religion.

In upholding the validity of Tennessee's statutory scheme for specialty license plates in the context of the legislature's authorization of such a plate with a "Choose Life" inscription, the Sixth Circuit found that the message on the specialty license plate represents government speech for purposes of the Free Speech Clause of the First Amendment. ACLU v. Bredesen, 441 F.3d 370, 375-380 (6th Cir. 2006), cert. denied, 548 U.S. 906 (2006). The Sixth Circuit noted that the governmental message is disseminated by the volunteers who display the specialty plates on their private vehicles. Id. at 377-380. The court further noted that "there is no reason to doubt that a group's ability to secure a specialty plate amounts to state approval." Id. at 376.

While the Free Speech Clause of the First Amendment does not regulate government speech, "government speech must comport with the Establishment Clause." Pleasant Grove City, Utah v. Summum, ___ U.S. ___, 129 S.Ct. 1125, 1131-32 (2009). The Establishment Clause of the First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion[.]" The First Amendment is applicable to the states through operation of the Fourteenth Amendment. At a minimum, the First Amendment guarantees that the government may not coerce anyone to support or participate in a religion or its exercise, or otherwise act in a way that establishes a state religion or religious faith or that tends to do so. Lee v. Weisman, 505 U.S. 577 (1992). Similarly, Article I, Section 3, of the Tennessee Constitution provides, in part, that "no preference shall ever be given, by law, to any religious establishment or mode of worship." In Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15-16 (1947), the Supreme Court stated that the Establishment Clause means that neither a state nor the federal government may "pass laws which aid one religion, aid all religions, or prefer one religion over another."

Courts frequently use a three-part test articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971), to determine whether government actions violate the Establishment Clause. Under this test, the criteria to be examined in determining whether a statute violates the Establishment Clause are: (1) whether the statute has a secular legislative purpose; (2) whether its primary effect is one that neither advances nor inhibits religion; and (3) whether it fosters excessive government entanglement with religion. The Lemon test has been criticized in some cases. See, e.g., Van Orden v. Perry, 545 U.S. 677, 685-86 (2005). In that case, although the Court found that the Lemon test was "not useful" in determining whether a display of the Ten Commandments on the Texas Capitol grounds violated the Establishment Clause, the Court did not reject use of the test in other contexts. Id. The Sixth Circuit Court of Appeals and federal district courts within Tennessee still apply the Lemon test in analyzing whether government actions violate the Establishment Clause. Under the Lemon test, as later refined in what is known as the "endorsement test," courts look to whether a reasonable observer would believe that a particular action constitutes an endorsement of religion by the government. Adland v. Russ, 307 F.3d 471, 479 (6th Cir. 2002), cert. denied, 538 U.S. 999 (2003) ("endorsement test" is a refinement of the second prong of the Lemon test); see also Doe v. Wilson County School System, 564 F.Supp.2d 766, 792-93 (M.D. Tenn. 2008) (Lemon test, as refined by the "endorsement test," applied to invalidate actions conveying that a particular religious belief is favored or preferred in the public school context).

"Whatever else the Establishment Clause may mean (and [the United States Supreme Court has] held it to mean no official preference even for religion over nonreligion), it certainly means that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions)." County of Allegheny v. ACLU, 492 U.S. 573, 605 (1989) (found holiday display of crèche depicting the Christian Nativity scene that was placed on county courthouse main stairway to violate the Establishment Clause). The Court noted "[h]owever history may affect the constitutionality of nonsectarian references to religion by government [such as in the national motto, 'In God We Trust'], history cannot legitimate practices that demonstrate the government's allegiance to a particular sect or creed." Id. at 603; see also Gaylor v. United States, 74 F.3d 214 (10th Cir. 1996) (applied "endorsement test" to find statutes establishing "In God We Trust" as national motto and placing it on United States currency do not violate the Establishment Clause).

The proposed legislation is constitutionally suspect as it differentiates among religious doctrines and only specially recognizes one religious creed. Moreover, under the "endorsement test," we think a court would find that a reasonable observer would believe that the dissemination of this government message on this new specialty earmarked license plate is a governmental endorsement of this particular religious creed. The dissemination of the governmental message on the new specialty earmarked plate, therefore, would likely fail the "endorsement test" applied by the United States Court of Appeals for the Sixth Circuit under the Lemon test.

[Footnote 1: Although Article I, Section 3 of the Tennessee Constitution is "practically synonymous" with the First Amendment, Tennessee courts have noted that "the language of [Article I, Section 3 of the Tennessee Constitution], when compared to the guarantee of religious freedom contained in the federal constitution, is a stronger guarantee of religious freedom." Planned Parenthood of Middle Tennessee v. Sundquist, 38 S.W.3d 1, 13 (Tenn. 2000), citing Carden v. Bland, 199 Tenn. 665, 288 S.W.2d 718, 721 (1956). See also State ex rel. Comm'r of Transp. v. Medicine Bird, 63 S.W.3d 734, 761 (Tenn. Ct. App. 2001) (recognizing that the "prohibition against government establishment of religion" contained in Article I, Section 3 of the Tennessee Constitution provides broader protection than the First Amendment of the United States Constitution, although applying similar analysis under each provision).]

[Footnote 2: The Lemon test has been used in construing the application of Article I, Section 3 of the Tennessee Constitution. Martin v. Beer Board for City of Dickson, 908 S.W.2d 941, 951 (Tenn. Ct. App. 1995), citing Steele v. Waters, 527 S.W.2d 72, 74 (Tenn. 1975).]

[Footnote 3: Under the specialty earmarked license plate program, public and private organizations may qualify to receive direct payments of state money collected from the sale of the license plates to be used for a broad range of activities. Courts have found that government aid has the primary effect of advancing religion where it flows directly to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting. Roemer v. Board of Public Works of Maryland, 426 U.S. 736 (1976) (plurality); Hunt v. McNair, 413 U.S. 734 (1973). In the previously cited Attorney General opinions, this Office opined that a church and the charities chosen to support the mission of that church or religion would likely be viewed as such an institution. Assuming as stated in the Request that none of the proceeds from the sale of the specialty license plates would benefit a religiously affiliated entity or activity, the use of these proceeds likely would not present a constitutional issue regarding advancing religion.]

ROBERT E. COOPER, JR.
Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

STEVEN A. HART
Special Counsel

Requested by:

The Honorable Eric Stewart
State Senator
310A War Memorial Building
Nashville, Tennessee 37243