Can Tennessee require all license plates to bear 'In God We Trust,' or only offer it as a chosen option?

Plain-English summary

A Tennessee representative asked the AG to look at two versions of a proposed change to the state's license-plate program. The first version would require every plate to bear "In God We Trust." The second would only offer an optional plate carrying that phrase, with drivers free to choose a different plate. The AG split the analysis.

Mandatory version: constitutionally suspect. The AG ran the proposal through three First Amendment clauses and reached three concerns.

• Free Speech. Under Wooley v. Maynard, 430 U.S. 705 (1977), New Hampshire could not require drivers who objected on religious grounds to carry "Live Free or Die" on their plates. The plate acts as a "mobile billboard" tying a state message to the operator. Forcing a driver to broadcast a religious-tinged message would replay the same problem.
• Free Exercise. Under Hernandez v. C.I.R., Hobbie v. Unemployment Appeals Commission, Thomas v. Review Board, Wisconsin v. Yoder, and Tennessee's Preservation of Religious Freedom Act, the state cannot substantially burden a sincere religious belief without a compelling interest. The AG saw no compelling justification for forcing a driver who objects on religious grounds to display the phrase.
• Establishment Clause. Under Torcaso v. Watkins and Everson, the state cannot pass laws that aid religion or force a person to profess belief or disbelief. The AG read a mandatory plate as a borderline religious-affirmation requirement.

Optional version: constitutionally defensible. When a driver chooses an "In God We Trust" plate from a menu, the free-speech and free-exercise problems fall away because no one is compelled. The remaining question is Establishment Clause analysis under the Lemon v. Kurtzman three-prong test. The AG concluded:

• Secular purpose. The phrase is the national motto, with a long secular use as a symbol of common identity. Lynch v. Donnelly sets a forgiving bar (the action fails the first prong only if "entirely motivated by a purpose to advance religion").
• Primary effect. The Supreme Court's "ceremonial deism" line of cases, anchored by Marsh v. Chambers, supports the conclusion that the phrase has lost significant religious content through repeated official use. The national motto, "under God" in the Pledge, and similar invocations have been treated as ceremonial rather than coercive.
• Excessive entanglement. Offering a plate option does not require ongoing state surveillance of a religious institution; no entanglement.

So an optional "In God We Trust" plate would be defensible. A mandatory one would not.

Currency note

This opinion was issued in 2017 and applies the Lemon three-prong Establishment Clause test as it stood at that time. The Supreme Court's Establishment Clause jurisprudence has shifted since (notably, Kennedy v. Bremerton School District in 2022 indicated that Lemon and its "endorsement test" are no longer the operative framework). The basic conclusions about compelled speech and coercion likely still hold, but the specific analytical framework has changed. Treat this page as historical context, not current legal advice. Verify present-day federal and Tennessee law before relying on the specific test or precedent discussed here.

Background and statutory framework

Tennessee's license-plate program runs on a familiar two-track structure. Standard plates carry "Tennessee," a number, a state silhouette, "The Volunteer State," and the state tourism website. Special plates fall into five categories under Tenn. Code Ann. § 55-4-201(a): cultural, specialty earmarked, new specialty earmarked, memorial, and special purpose. Drivers pay an extra fee for the cultural and specialty plates, and the proceeds go to designated agencies, charities, programs, and activities under § 55-4-201(i). Examples include Ducks Unlimited, the Nashville Predators, and the Ronald McDonald House plates. Memorial plates like the disabled veterans and Purple Heart plates are issued free under § 55-4-209(3). Special purpose plates identify antique vehicles, judiciary members, and the Tennessee state guard under § 55-4-209(8).

The motto and the case law. "In God We Trust" has been on coins since 1865 (13 Stat. 517) and on currency since 1955 (Pub. L. No. 140-303, 69 Stat. 290). It became the national motto in 1956 (36 U.S.C. § 302). The phrase carries both historical and religious resonance, which is exactly the doctrinal pressure point.

Compelled-speech doctrine (Free Speech). The First Amendment "stringently limits a State's authority to compel a private party to express a view with which the private party disagrees." Walker v. Texas Div., Sons of Confederate Veterans, 135 S. Ct. 2239, 2253 (2015). Barnette struck down compelled flag salutes. Wooley v. Maynard struck down New Hampshire's mandatory "Live Free or Die" plate, even though the operative effect was passive display rather than spoken pledge. The plate operates as a mobile billboard tied to the operator. Footnote 15 of Wooley expressly distinguished currency, which is carried in a pocket and not publicly displayed, from plates, which are publicly visible whenever the vehicle is in public view.

Free Exercise. The free-exercise inquiry asks whether the government has placed a substantial burden on a person's central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden. Hernandez v. C.I.R.; Hobbie v. Unemployment Appeals Comm'n; Thomas v. Review Bd.; Wisconsin v. Yoder. Smith (1990) departed from that standard, but Congress restored it by RFRA, which after City of Boerne v. Flores binds the federal government, and Tennessee restored it for state action by the Preservation of Religious Freedom Act, Tenn. Code Ann. § 4-1-407(c)(1)-(2). Forcing a religious objector to broadcast a phrase that contradicts their belief would be a substantial burden, and the AG identified no compelling state interest sufficient to justify it.

Establishment Clause. Torcaso v. Watkins held a state cannot impose a religious test, including a declaration of belief in God, as a condition of office. The AG noted that a mandatory plate is not strictly a "religious test" but carries similar coercive overtones: the operator must display a message that could read as a religious affirmation, with no opt-out short of refusing to register the vehicle (a misdemeanor under § 55-5-114).

The optional plate, under Lemon. The opinion ran Lemon's three prongs:

1. Secular purpose. The national motto is a symbol of common identity and reinforces a sense of membership in the state and nation. That counts as a legitimate secular purpose. The first prong fails only if the law is "entirely motivated by a purpose to advance religion." Wallace v. Jaffree, 472 U.S. at 56.

2. Primary effect. Here is where "ceremonial deism" does the work. Marsh v. Chambers upheld legislative opening prayers despite their religious content, citing more than two hundred years of unbroken practice. The Court has applied similar logic to national motto questions; the AG followed suit, concluding that an optional plate bearing the motto does not have the primary effect of advancing religion.

3. Excessive entanglement. Lemon itself involved ongoing state regulation of religious schools to keep state-funded education secular. Offering an optional plate has none of that surveillance-and-monitoring concern. No entanglement.

The optional version therefore passes all three prongs and is constitutionally defensible.

Tennessee Constitution. Article I, sections 3 and 19 of the Tennessee Constitution provide protections at least as strong as the First Amendment. The Tennessee analysis would track or exceed the federal analysis, with the same outcome for each version of the bill.

Common questions

Q: Why is the mandatory version a problem and the optional one not?
A: Compulsion is the constitutional pressure point. Wooley v. Maynard says the state can't force an unwilling driver to display an ideological or religious-tinged message on their license plate. When the plate is opt-in, no one is compelled, so the free-speech and free-exercise problems do not arise. The remaining Establishment Clause concerns are weaker for an optional plate because of the long history of ceremonial-deism use of the motto.

Q: Is "In God We Trust" really religious if it's also the national motto?
A: Both. The opinion recognizes that the phrase carries clear religious overtones in addition to its historical significance, while also treating it as a permissible ceremonial-deism phrase in many non-coercive settings (see Marsh v. Chambers).

Q: What about other states that have done this?
A: Many states offer optional "In God We Trust" plates. The opinion didn't compile a state-by-state list, but the constitutional analysis for optional plates is broadly similar across jurisdictions.

Q: Could Tennessee require the phrase on plates as default but allow an opt-out?
A: The opinion did not directly analyze that middle option. The closer the default is to compulsion (think Wooley's "obscure-the-motto-and-be-prosecuted" regime), the closer the constitutional concerns. A meaningful, easy opt-out at point of registration might cure the compelled-speech concern. The opinion did not bless or condemn that middle path.

Q: Does the Lemon test still apply?
A: Not in the same form. Kennedy v. Bremerton School District (2022) indicated that Lemon is no longer the controlling Establishment Clause framework. The conclusions in this opinion about compelled speech are still likely good law, but the Establishment Clause analysis of the optional plate would today follow a "history and tradition" approach rather than Lemon's three prongs.

Q: Where does the Preservation of Religious Freedom Act fit in?
A: Tennessee's PRFA, Tenn. Code Ann. § 4-1-407(c)(1)-(2), prohibits the state from substantially burdening a person's free exercise of religion unless the burden is essential to a compelling government interest and is the least restrictive means. The AG used PRFA as an independent state-law backstop to the federal Free Exercise analysis.

Citations and references

Statutes:

• Tenn. Code Ann. § 55-4-101 (registration plate requirement)
• Tenn. Code Ann. § 55-5-114 (operating without plate)
• Tenn. Code Ann. § 55-4-103 (standard plate)
• Tenn. Code Ann. § 55-4-201(a), (b), (i) (special plates)
• Tenn. Code Ann. § 55-4-209 (memorial and special purpose plates)
• Tenn. Code Ann. § 55-4-220(a) (specialty plate designs)
• Tenn. Code Ann. § 55-4-110(b), (d)(1) (plate display requirements)
• Tenn. Code Ann. § 4-1-407(c)(1)-(2) (Preservation of Religious Freedom Act)
• 31 U.S.C. § 5112(d)(1); 31 U.S.C. § 5114(b); 36 U.S.C. § 302 (national motto)

Cases (selected):

• Wooley v. Maynard, 430 U.S. 705 (1977)
• West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)
• Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015)
• Torcaso v. Watkins, 367 U.S. 488 (1961)
• Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947)
• Lemon v. Kurtzman, 403 U.S. 602 (1971)
• Lynch v. Donnelly, 465 U.S. 668 (1984)
• Marsh v. Chambers, 463 U.S. 783 (1983)
• City of Boerne v. Flores, 521 U.S. 507 (1997)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-021.pdf

Original opinion text

Constitutionality of Vehicle Registration Plates Bearing "In God We Trust"

Question 1
Is legislation that requires all Tennessee vehicle registration plates to bear the language "In God We Trust" constitutionally permissible?

Opinion 1
Legislation that requires all vehicle registration plates to bear the language "In God We Trust" would be constitutionally suspect under the Establishment Clause, the Free Exercise Clause, and the Free Speech Clause of the First Amendment, as well as sections 3 and 19 of article I of the Tennessee Constitution.

Question 2
Is legislation that gives Tennessee vehicle owners the option of selecting a vehicle registration plate bearing the language "In God We Trust" constitutionally permissible?

Opinion 2
Legislation that gives vehicle owners the option of selecting a vehicle registration plate bearing the language "In God We Trust" would be constitutionally defensible.

ANALYSIS

Tennessee law generally requires all motor vehicles operating on the streets and highways of this State to display valid registration plates. See Tenn. Code Ann. §§ 55-4-101; 55-5-114. Vehicle owners may display the State's standard plate, see Tenn. Code Ann. § 55-4-103; or they may display a "special license plate," which generally requires the payment of a fee in addition to the applicable standard registration fee. See Tenn. Code Ann. § 55-4-201(b).

A standard plate contains the word "Tennessee," a license plate number, a silhouette of the State, the slogan "The Volunteer State," and the State's official travel-planning website address.

Special license plates contain the word "Tennessee," a license plate number, and a design approved by the commissioner of revenue. There are five categories of special plates: "cultural, specialty earmarked and new specialty earmarked motor vehicle registration plates, memorial motor vehicle registration plates and special purpose motor vehicle registration plates." See Tenn. Code Ann. § 55-4-201(a). The cultural, specialty earmarked, and new specialty earmarked plates typically bear a special logotype or distinctive design of the agency, organization, or purpose that is being honored or recognized by the issuance of the particular plate. See Tenn. Code Ann. § 55-4-220(a). All funds from the sale or renewal of these plates benefit specific "departments, agencies, charities, programs and other activities impacting Tennessee." See Tenn. Code Ann. § 55-4-201(i). Examples of these plates include ones recognizing Ducks Unlimited, the Nashville Predators, and the Ronald McDonald House. See Tenn. Code Ann. §§ 55-4-265; 55-4-291; 55-4-364. Memorial plates, on the other hand, are issued free of charge to honor certain individuals. See Tenn. Code Ann. § 55-4-209(3). See, e.g., Tenn. Code Ann. § 55-4-237 (disabled veterans); Tenn. Code Ann. § 55-4-239 (holders of the Purple Heart). Finally, special purpose plates identify antique motor vehicles and certain citizenry. See Tenn. Code Ann. § 55-4-209(8). See, e.g., Tenn. Code Ann. § 55-4-226 (judiciary members); Tenn. Code Ann. § 55-4-270 (Tennessee state guard).

The phrase "In God We Trust" is well known and is steeped in history. Since 1865, the words "In God We Trust" have been impressed upon our coins. See 13 Stat. 517, 518 (1865); 35 Stat. 164 (1908) (current version at 31 U.S.C. § 5112(d)(1)). In 1955, the use of the phrase was extended to the national currency. See Pub. L. No. 140-303, 69 Stat. 290 (1955) (current version at 31 U.S.C. § 5114(b)). Then, Congress adopted the phrase as our country's national motto in 1956. 36 U.S.C. § 302. The motto is inscribed above the Speaker's Chair in the House of Representatives and above the main door of the Senate, among other prominent places. See Pub. L. No. 107-293, 116 Stat. 2057 (2002); 4 U.S.C. § 4 note.

But, in addition to having historical significance, the phrase "In God We Trust" clearly has religious overtones, too. It is this religious aspect of the phrase that gives rise to questions about the constitutionality of legislation that would require all vehicle registration plates to bear the language "In God We Trust."

The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." As is plain from its text, the First Amendment curtails the power of Congress to interfere with an individual's freedom to believe, to worship, and to express himself in accordance with the dictates of his own conscience. Wallace v. Jaffree, 472 U.S. 38, 49 (1985). By virtue of the Fourteenth Amendment, the same restraint is placed on the States' power to legislate. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301 (2000).

The Tennessee Constitution provides the same or greater protections that are afforded under these clauses, and the legal analysis under the Tennessee Constitution is essentially the same as that under the federal Constitution. See State ex rel. v. Comm'r of Transp. v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734, 761 (Tenn. Ct. App. 2001); Martin v. Beer Bd. for City of Dickson, 908 S.W.2d 941, 946 (Tenn. Ct. App. 1995); Lewis v. NewsChannel 5 Network, L.P., 238 S.W.3d 270, 288 (Tenn. Ct. App. 2007).

1. "In God We Trust" as a Requirement. The proposed legislation that would require all vehicle registration plates to bear the language "In God We Trust" implicates all three clauses of the First Amendment: the Establishment Clause, the Free Exercise Clause, and the Free Speech Clause.

Free Speech Clause. The right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all. Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507, 516-17 (1991); Wallace, 472 U.S. at 51. Accordingly, it is well established that the "First Amendment stringently limits a State's authority to compel a private party to express a view with which the private party disagrees." Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2253 (2015) (citations omitted). For example, the Supreme Court has upheld a person's right to be free from honoring the American flag. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).

Similarly, in Wooley v. Maynard, 430 U.S. 705 (1977), the Supreme Court upheld a person's right to not display an ideological message of the State that the person found objectionable. In Wooley, a New Hampshire couple challenged statutes that required noncommercial motor vehicles to bear license plates embossed with the state motto, "Live Free or Die," and made it a misdemeanor to obscure the motto. Id. at 707. The plaintiffs were followers of the Jehovah's Witnesses faith and viewed the motto as repugnant to their moral, religious and political beliefs.

The Court found that obliging the plaintiffs to "use their private property as a 'mobile billboard' for the State's ideological message or suffer a penalty" implicated the protections afforded to them under the First Amendment. Id. at 715. In concluding its opinion, the Court gave notice that the medium by which the governmental message is conveyed is pivotal. The Court presciently discarded a suggestion that its holding would be read as sanctioning the obliteration of the national motto "In God We Trust" from United States coins and currency. Id. at 717 n. 15. The Court explained that currency is generally carried in a purse or pocket and need not be displayed to the public, while a license plate is publicly displayed by association with its operator.

Free Exercise Clause. For similar reasons, the proposed legislation requiring motor vehicle owners to display registration plates with the language of "In God We Trust" would also implicate the protections afforded individuals under the Free Exercise Clause of the First Amendment. See Lee v. Weisman, 505 U.S. 577, 591 (1992). The free exercise inquiry established by the Supreme Court is whether the government has placed a substantial burden on the observation of a person's central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden. Hernandez v. C.I.R., 490 U.S. 680, 699 (1989); Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 141-142 (1987); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 717-719 (1981); Wisconsin v. Yoder, 406 U.S. 205, 220-221 (1972). While the Supreme Court departed from this standard in 1990 in Employment Div., Dep't of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), Congress enacted the Religious Freedom Restoration Act to restore the previous standard. See City of Boerne v. Flores, 521 U.S. 507 (1997). Tennessee subsequently enacted its own Preservation of Religious Freedom Act. Tenn. Code Ann. § 4-1-407(c)(1)-(2).

A person who objects to displaying the phrase "In God We Trust" on his registration plate for religious reasons does face a choice between a core belief and a basic benefit. As explained in Wooley, an operator of a motor vehicle is "readily associated" with that vehicle, and the vehicle's license plate is a type of "mobile billboard." Thus, a person who objects to displaying the phrase "In God We Trust" on his registration plate must choose between fidelity to his belief and the ability to lawfully operate his motor vehicle in this State. Accordingly, such a person would be "substantially burdened" by a requirement that his registration plate display the phrase "In God We Trust." There is no apparent countervailing compelling interest that the State could assert to justify this burden.

Establishment Clause. Finally, legislation that requires all vehicle registration plates to bear the language "In God We Trust" would be constitutionally suspect under the Establishment Clause. The Supreme Court has found unconstitutional, for example, a state requirement of a declaration of a "belief in the existence of God" as a religious test to hold office. Torcaso v. Watkins, 367 U.S. 488 (1961). The Court "repeat[ed] and again reaffirm[ed]" its earlier holding in Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15-16 (1947): "neither a State nor the Federal Government can constitutionally force a person 'to profess a belief or disbelief in any religion.' Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs." Torcaso, 367 U.S. at 495.

2. "In God We Trust" as an Option. We next consider the constitutionality of legislation that would give vehicle owners the option of selecting a vehicle registration plate bearing the language "In God We Trust." Removing the requirement that vehicle owners have registration plates displaying the language "In God We Trust" alleviates the Free Speech Clause and Free Exercise Clause concerns discussed above.

The only remaining consideration is the Establishment Clause. The Supreme Court's general framework for analyzing Establishment Clause challenges comes from Lemon v. Kurtzman, 403 U.S. 602 (1971). The three-pronged test conceived in Lemon provides that legislation: (1) must have a secular purpose; (2) must have a principal or primary effect which neither advances nor inhibits religion; and (3) may not foster "excessive government entanglement with religion." Id. at 612-613.

Under applicable Supreme Court precedent, a "legitimate secular purpose" supporting a challenged governmental action will suffice to satisfy the Lemon test's first prong. See Lynch v. Donnelly, 465 U.S. 668, 681 (1984). The first prong of the Lemon test is contravened "only if [the action] is 'entirely motivated by a purpose to advance religion.'" Wallace, 472 U.S. at 56. See Brooks v. City of Oak Ridge, 222 F.3d 259, 265 (6th Cir. 2000). The purpose of the proposed legislation is not known, but the national motto is a symbol of common identity that serves an important secular purpose of reinforcing a citizen's sense of membership in an identifiable state or nation. That the use of the language may have other purposes that are not exclusively secular does not mean that the use of the motto on vehicle registration plates fails the first part of the Lemon test.

Under the second prong of the Lemon test, the question is whether the "primary effect" of the usage of the national motto is one that either advances or inhibits religion. The inquiry here is "whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval [of religion]." See Wallace, 472 U.S. at 56 n. 42. The Supreme Court has sustained certain legislation under a "ceremonial deism" theory in a noncoercive setting. The rationale is that certain phrases and practices that include the invocation of God in nondenominational terms have lost significant religious content over time through rote repetition. For instance, the Supreme Court has upheld legislative opening prayers "in light of the unambiguous and unbroken history" of the practice for more than two hundred years, finding that the practice had become "part of the fabric of our society." See Marsh v. Chambers, 463 U.S. 783, 792 (1983).

Accordingly, legislation that allows, but does not require, an operator of a motor vehicle to have a registration plate bearing the phrase "In God We Trust" is constitutionally defensible as a form of ceremonial deism under the second prong of the Lemon test.

Under the third prong of the Lemon test, the question is whether displaying the national motto on registration plates fosters an excessive government entanglement with religion. The kind of excessive entanglement of government and religion precluded by Lemon is characterized by "comprehensive, discriminating, and continuing state surveillance" of religious exercise. Lemon, 403 U.S. at 619. In Lemon, the state statutes under consideration required extensive state regulation and monitoring to insure that education paid for by state funds but delivered in church schools remained secular in nature. The proposed legislation at issue here is not comparable. The State's role in making available as an option a license plate bearing the message "In God We Trust" would not lead to the type of excessive entanglement prohibited by the third prong of the Lemon test.

Accordingly, legislation that gives vehicle owners the option of selecting a vehicle registration plate bearing the language "In God We Trust" would be constitutionally defensible.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

LAURA T. KIDWELL
Senior Counsel

Requested by:
Honorable Bill Sanderson
State Representative
204 War Memorial Building
Nashville, Tennessee 37243