Would a Tennessee law requiring the governor to designate a 'Tennessee's Day of Prayer' violate the First Amendment's Establishment Clause?

Subject

Opinion No. 12-14, Constitutionality Of Legislation Requiring Governor To Designate "Tennessee's Day Of Prayer", February 14, 2012

Plain-English summary

Representative Pody asked the AG whether SB 2516, which would have added Tenn. Code Ann. § 4-1-410 requiring the governor to designate the first Thursday of every May as "Tennessee's Day of Prayer," would violate the Establishment Clause of the First Amendment. The bill said the people of the state "may turn to prayer, meditation or otherwise give thanks, in accordance with their own faiths and consciences."

The AG concluded the bill could not be successfully challenged in court, for three converging reasons.

Not really a "law respecting an establishment of religion." The bill required nothing of citizens. The only command ran to the governor: designate this date. Nobody was required to pray, meditate, or do anything. Tennessee had previously taken this position about a 2005 Day of Prayer resolution. Tenn. Op. Atty. Gen. 05-063 (April 27, 2005). And courts treat a designation that obliges only an executive officer as outside the heartland of the Establishment Clause.

Historical practice insulates the design. The U.S. Supreme Court in Marsh v. Chambers (1983) and Lynch v. Donnelly (1984) emphasized the unbroken history of governmental acknowledgment of religion in American public life since 1789. Days of prayer, "In God We Trust," opening invocations: these traditions sit in a category the Court has treated as ceremonial and historical, not as state establishment of religion. SB 2516 fit comfortably in that lineage, and on its face was non-sectarian (prayer, meditation, or whatever else "in accordance with their own faiths and consciences").

Standing. The Seventh Circuit had recently held in Freedom From Religion Foundation, Inc. v. Obama, 641 F.3d 803 (7th Cir. 2011), that organizations and individuals who object to the federal National Day of Prayer proclamation lack Article III standing. The federal statute imposed duties only on the President, the proclamation was addressed to the public at large, and no objector was injured by choosing not to follow the President's request. The same analysis would apply to a Tennessee Day of Prayer.

The AG added one separation-of-powers wrinkle. Using "shall" rather than "may" might press against the Governor's executive discretion under Tenn. Const. art. III, § 1. The Tennessee Supreme Court has long held that the Legislature cannot compel the Governor by mandamus. State ex rel. Latture v. Frazier (1905); Jonesboro Fall Branch (1875); Richardson v. Young (1910). The practical answer: the Governor would retain discretion in fact even if the statute used the directive "shall." The AG did not opine that the "shall" rendered the bill unconstitutional, only that the directive language could not actually compel executive action.

Currency note

This opinion was issued in 2012. 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 framework has continued to evolve. Town of Greece v. Galloway (2014), American Legion v. American Humanist Association (2019), and Kennedy v. Bremerton School District (2022) have reshaped how courts evaluate government acknowledgment of religion. The opinion's bottom-line conclusion (Day of Prayer designations are constitutional) is consistent with that trajectory, but the analytical framework the AG used (Lemon, ceremonial-deism doctrine) has been substantially modified.

Background and statutory framework

The federal National Day of Prayer. 36 U.S.C. § 119: "The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals."

SB 2516. The proposed bill paralleled the federal statute, substituting "Tennessee's Day of Prayer" and broadening "prayer" to "prayer, meditation or otherwise give thanks, in accordance with their own faiths and consciences."

Marsh, Lynch, and the historical-practice doctrine. Both decisions upheld government practices that touched religion, on the theory that the Establishment Clause permits ceremonial and historical acknowledgments that have existed since the founding without coercing or favoring any particular faith.

Standing in Establishment Clause cases. Freedom From Religion Foundation, Inc. v. Obama (7th Cir. 2011) reversed a district court holding (705 F. Supp. 2d 1039 (W.D. Wis. 2010)) that the National Day of Prayer statute violated the Establishment Clause. The Seventh Circuit found the plaintiffs lacked standing: the law imposed obligations only on the President and inflicted no judicially cognizable injury on people who chose not to follow the President's request.

Separation-of-powers backdrop. Tenn. Const. art. III, § 1 vests "the supreme executive power of this state" in the Governor. The Tennessee Supreme Court has repeatedly held that the Governor cannot be compelled by mandamus to take particular executive actions.

Common questions

Q: Does the state Day of Prayer require anyone to pray?
A: No. The bill imposed a designation obligation on the governor and nothing else. Citizens were free to ignore, observe, or repurpose the day as they saw fit.

Q: Could an atheist or non-religious organization successfully challenge this in court? A: Per this opinion and the cited Seventh Circuit case, no, for lack of standing. A citizen offended by a government statement but not coerced or excluded from a government benefit generally has no Article III injury sufficient to sue.

Q: What about the Lemon test?
A: The opinion noted the federal district court's Lemon analysis but relied on the Seventh Circuit's standing-based reversal and on the Marsh/Lynch historical-practice line. The U.S. Supreme Court has since moved away from Lemon in favor of historical-tradition analysis (Kennedy v. Bremerton, 2022), which the AG's bottom line tracks.

Q: Could the Governor refuse to issue the proclamation?
A: As a matter of practice, yes. The Tennessee Supreme Court has repeatedly held that the Legislature cannot mandamus the Governor into specific executive action. The directive "shall" in the bill could not actually force a proclamation against the Governor's will.

Q: Is this the same as a school-prayer law?
A: No. School-prayer cases involve government coercion in a captive-audience setting (compulsory attendance). A statewide Day of Prayer is a non-coercive symbolic gesture, which is the category the Supreme Court treats most leniently under the Establishment Clause.

Citations and references

Statutes and constitutional provisions:

• U.S. Const. amend. I
• Tenn. Const. art. III, § 1
• 36 U.S.C. § 119
• Proposed Tenn. Code Ann. § 4-1-410 (SB 2516, HB 2321)

Cases:

• Marsh v. Chambers, 463 U.S. 783 (1983)
• Lynch v. Donnelly, 465 U.S. 668 (1984)
• Lemon v. Kurtzman, 403 U.S. 602 (1971)
• Freedom From Religion Foundation, Inc. v. Obama, 641 F.3d 803 (7th Cir. 2011)
• State ex rel. Latture v. Frazier, 86 S.W. 319 (Tenn. 1905)
• Richardson v. Young, 525 S.W. 664 (Tenn. 1910)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-014.pdf

Original opinion text

Constitutionality Of Legislation Requiring Governor To Designate "Tennessee's Day Of Prayer" Would pending legislation that would require the Governor to designate a certain date as "Tennessee's Day of Prayer,' on which the people of this State may turn to prayer, meditation or otherwise give thanks, in accordance with their own faiths and consciences" be found by a court to violate the First Amendment's Establishment Clause? No, this Office believes that legislation requiring the Governor to designate "Tennessee's Day of Prayer" could not be successfully challenged in court as being Bill 2516 of the 107th General Assembly (hereinafter "SB2516") which is currently pending before the General Assembly. This legislation amends the Tennessee Code Annotated by adding The governor shall designate the first Thursday during the month of May of each calendar year as "Tennessee's Day of Prayer" on which the people of this state may turn to prayer, meditation or otherwise give thanks, in accordance with their States of the same day as a "National Day of Prayer." The only obligation imposed by this The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and S T A T E O F T E N N E S S E E OFFICE OF THE ATTORNEY GENERAL PO BOX 20207 NASHVILLE, TENNESSEE 37202 February 14, 2012 Opinion No. 12-14 Constitutionality Of Legislation Requiring Governor To Designate “Tennessee’s Day Of Prayer” QUESTION Would pending legislation that would require the Governor to designate a certain date as “‘Tennessee’s Day of Prayer,’ on which the people of this State may turn to prayer, meditation or otherwise give thanks, in accordance with their own faiths and consciences” be found by a court to violate the First Amendment’s Establishment Clause? OPINION No, this Office believes that legislation requiring the Governor to designate “Tennessee’s Day of Prayer” could not be successfully challenged in court as being unconstitutional. ANALYSIS This Office has been asked to assess the constitutional validity of House Bill 2321/Senate Bill 2516 of the 107th General Assembly (hereinafter “SB2516”) which is currently pending before the General Assembly. This legislation amends the Tennessee Code Annotated by adding a new section designated 4-1-410, which provides: The governor shall designate the first Thursday during the month of May of each calendar year as “Tennessee’s Day of Prayer” on which the people of this state may turn to prayer, meditation or otherwise give thanks, in accordance with their own faiths and consciences. Id. Section 1. This designation coincides with the designation by the President of the United States of the same day as a “National Day of Prayer.”1 The only obligation imposed by this 1 36 U.S.C. § 119 specifies: The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals. legislation is on the Governor alone. No citizens are obligated to pray, meditate, give thanks, or This Office opined that a similar Senate Joint Resolution in 2005 designating a specific date as "Tennessee Day of Prayer" to coincide with the "National Day of Prayer" did not violate the First Amendment or any other constitutional provisions. Tenn. Op. Atty. Gen. No. 05-063 (April 27, 2005) ("Constitutionality of Senate Joint Resolution 105 & House Joint Resolution No. 122"). This Office reasoned that neither of these resolutions violated the Establishment Clause of the First Amendment, which states that "congress shall make no law respecting an establishment of religion." First, neither resolution required or compelled any kind of action concerning religion. Nor did either resolution impose any penalties or sanctions of any kind. Thus these resolutions were not "laws" respecting an establishment of religion. Id. at 2-3. Furthermore, even if the resolutions could be considered "laws" for purposes of the Establishment Clause, these resolutions' recognition of historic circumstances, including the historic and traditional practice of issuing resolutions or proclamations designating days of prayer, would not violate the Establishment Clause. See Marsh v. Chambers, 463 U.S. 783, 786-95 (1983) (the historic circumstances contemporaneous with the passage of the Establishment Clause insulated the practice of the Nebraska Legislature paying a chaplain to open its sessions). This Office noted illustrations of the "unbroken history of official acknowledgement by all three branches of government of the role of religion in American life from at least 1789." Tenn. Op. Atty. Gen. No. 05-063, at 2-3. See also Lynch v. Donnelly, 465 U.S. 668, 674, 677 (1984). In recognition of the historic public designation of days of thanksgiving and prayer, our national motto, "In God We Trust," and the common practice of opening invocations prior to United States Supreme Court and other court sessions, this Office concluded that a Senate Joint Resolution designating a "Tennessee Day of Prayer" did not violate the Establishment Clause of the First Amendment. For these same reasons this Office is of the opinion SB2516 should withstand a constitutional challenge. The current legislation does not favor any religion, and on its face includes secular purposes by encouraging the people of this State to not only turn to prayer, but also meditation or otherwise give thanks "in accordance with their own faiths and consciences." It is also improbable that any party could establish standing to challenge the constitutionally of this legislation under the Establishment Clause. In Freedom From Religion Foundation, Inc., v. Obama, 641 F.3d 803, 804-07 (7th Cir. 2011),³ an organization of non- 2 The companion 2005 House Joint Resolution 122 designated a specific day as a "day of special prayer for widows" and "ask[s] that all Tennesseans pause to remember and emphasize with the plight of our bereaved sisters." 3 The Seventh Circuit Court of Appeals reversed and dismissed the lower court's finding that the statute and proclamation recognizing a National Day of Prayer violated the Establishment Clause. See Freedom From Religious Foundation, Inc v. Obama, 705 F.Supp.2d 1039 (W.D. Wisc. 2010). The district court first applied the Establishment Clause test articulated in Lemon V. Kurtzman, 403 U.S. 602 (1971), which held that government action is invalid if (1) it has no secular purpose; (2) its primary effect advances or inhibits religion; or (3) it fosters an excessive entanglement with religion. The first two prongs are often described as the "endorsement test," and the inquiry is whether the statute actually conveys a message of endorsement of religion. 705 F.Supp.2d at 1048. The district court concluded that the legislative history and the specific language of the federal statute failed to support a secular purpose and effectively endorsed religion. Id. at 1050-55. The district court did not accept the arguments that the National Day of Prayer is to acknowledge the role of religion in American life, which is not objectionable, or Page 2 legislation is on the Governor alone. No citizens are obligated to pray, meditate, give thanks, or take any action. This Office opined that a similar Senate Joint Resolution in 2005 designating a specific date as “Tennessee Day of Prayer” to coincide with the “National Day of Prayer” did not violate the First Amendment or any other constitutional provisions. Tenn. Op. Atty. Gen. No. 05-063 (April 27, 2005) (“Constitutionality of Senate Joint Resolution 105 & House Joint Resolution No. 122”). 2 This Office reasoned that neither of these resolutions violated the Establishment Clause of the First Amendment, which states that “congress shall make no law respecting an establishment of religion.” First, neither resolution required or compelled any kind of action concerning religion. Nor did either resolution impose any penalties or sanctions of any kind. Thus these resolutions were not “laws” respecting an establishment of religion. Id. at 2-3. Furthermore, even if the resolutions could be considered “laws” for purposes of the Establishment Clause, these resolutions‟ recognition of historic circumstances, including the historic and traditional practice of issuing resolutions or proclamations designating days of prayer, would not violate the Establishment Clause. See Marsh v. Chambers, 463 U.S. 783, 786-95 (1983) (the historic circumstances contemporaneous with the passage of the Establishment Clause insulated the practice of the Nebraska Legislature paying a chaplain to open its sessions). This Office noted illustrations of the “unbroken history of official acknowledgement by all three branches of government of the role of religion in American life from at least 1789.” Tenn. Op. Atty. Gen. No. 05-063, at 2-3. See also Lynch v. Donnelly, 465 U.S. 668, 674, 677 (1984). In recognition of the historic public designation of days of thanksgiving and prayer, our national motto, “In God We Trust,” and the common practice of opening invocations prior to United States Supreme Court and other court sessions, this Office concluded that a Senate Joint Resolution designating a “Tennessee Day of Prayer” did not violate the Establishment Clause of the First Amendment. For these same reasons this Office is of the opinion SB2516 should withstand a constitutional challenge. The current legislation does not favor any religion, and on its face includes secular purposes by encouraging the people of this State to not only turn to prayer, but also meditation or otherwise give thanks “in accordance with their own faiths and consciences.” It is also improbable that any party could establish standing to challenge the constitutionally of this legislation under the Establishment Clause. In Freedom From Religion Foundation, Inc., v. Obama, 641 F.3d 803, 804-07 (7th Cir. 2011),3 an organization of non- 2 The companion 2005 House Joint Resolution 122 designated a specific day as a “day of special prayer for widows” and “ask[s] that all Tennesseans pause to remember and emphasize with the plight of our bereaved sisters.” 3 The Seventh Circuit Court of Appeals reversed and dismissed the lower court‟s finding that the statute and proclamation recognizing a National Day of Prayer violated the Establishment Clause. See Freedom From Religious Foundation, Inc v. Obama, 705 F.Supp.2d 1039 (W.D. Wisc. 2010). The district court first applied the Establishment Clause test articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971), which held that government action is invalid if (1) it has no secular purpose; (2) its primary effect advances or inhibits religion; or (3) it fosters an excessive entanglement with religion. The first two prongs are often described as the “endorsement test,” and the inquiry is whether the statute actually conveys a message of endorsement of religion. 705 F.Supp.2d at 1048. The district court concluded that the legislative history and the specific language of the federal statute failed to support a secular purpose and effectively endorsed religion. Id. at 1050-55. The district court did not accept the arguments that the National Day of Prayer is to acknowledge the role of religion in American life, which is not objectionable, or religious persons and several of its members who objected to the President's proclamation of the National Day of Prayer were held to lack standing to challenge either the federal statute or the President's proclamations. The federal law imposes duties only on the President, and the President's proclamations are addressed to all citizens, with no one being obliged to pray or take any other action. No one is injured if they choose not to follow the President's request in the proclamation. Id. at 805-06. Moreover, the judicial branch does not censure a President's speech, noting that those who do not agree with the President's statements may speak in opposition but may not silence the speech of the President of which they disapprove. Id. at 806. This reasoning would apply to Tennessee's pending legislation. In light of the dismissal of the challenge to the federal statute creating a "National Day of Prayer," and incorporating our analysis in Tenn. Op. Atty. Gen. No. 05-063, we believe that the proposed legislation could not be successfully challenged in court as being unconstitutional. The use of the directive language that the Governor "shall" rather than "may" designate a certain date as "Tennessee's Day of Prayer" may implicate a separation of powers issue between the legislative and executive branches of government. The Governor of the State constitutes one of the three co-ordinate branches of the government and "the supreme executive power of this state shall be vested in the governor." Tenn. Const., Art. 3, § 1; State ex rel. Latture V. Frazier, 86 S.W. 319, 320 (Tenn. 1905) (finding that while the Legislature may appoint or name the Governor to act upon any board created by it, it is optional with the Governor whether he will serve or not, and he cannot be compelled by mandamus to act); Jonesboro Fall Branch & Blair's Gas Turnpike Co. v. Brown, 67 Tenn. 490, 491 (1875) (finding that governor cannot be compelled by mandamus to issue certain bonds which the legislature has directed to be issued). "Theoretically, the legislative power is the authority to make, order, and repeal, the executive that to administer and enforce, and the judicial, that to interpret and apply, laws." Richardson v. Young, 525 S.W. 664, 668 (Tenn. 1910). Accordingly, the Governor may exercise his discretion in regard to designating a "Tennessee Day of Prayer" pursuant to this legislation. that it is otherwise acceptable under Marsh v. Chambers, 463 U.S. at 786-95, which upheld legislative opening prayers as an example of "ceremonial deism" and in light of the "unambiguous and unbroken history" of the practice. 705 F.Supp.2d at 1055-64. Page 3 religious persons and several of its members who objected to the President‟s proclamation of the National Day of Prayer were held to lack standing to challenge either the federal statute or the President‟s proclamations. The federal law imposes duties only on the President, and the President‟s proclamations are addressed to all citizens, with no one being obliged to pray or take any other action. No one is injured if they choose not to follow the President‟s request in the proclamation. Id. at 805-06. Moreover, the judicial branch does not censure a President‟s speech, noting that those who do not agree with the President‟s statements may speak in opposition but may not silence the speech of the President of which they disapprove. Id. at 806. This reasoning would apply to Tennessee‟s pending legislation. In light of the dismissal of the challenge to the federal statute creating a “National Day of Prayer,” and incorporating our analysis in Tenn. Op. Atty. Gen. No. 05-063, we believe that the proposed legislation could not be successfully challenged in court as being unconstitutional. The use of the directive language that the Governor “shall” rather than “may” designate a certain date as “Tennessee‟s Day of Prayer” may implicate a separation of powers issue between the legislative and executive branches of government. The Governor of the State constitutes one of the three co-ordinate branches of the government and “the supreme executive power of this state shall be vested in the governor.” Tenn. Const., Art. 3, § 1; State ex rel. Latture v. Frazier, 86 S.W. 319, 320 (Tenn. 1905) (finding that while the Legislature may appoint or name the Governor to act upon any board created by it, it is optional with the Governor whether he will serve or not, and he cannot be compelled by mandamus to act); Jonesboro Fall Branch & Blair’s Gas Turnpike Co. v. Brown, 67 Tenn. 490, 491 (1875) (finding that governor cannot be compelled by mandamus to issue certain bonds which the legislature has directed to be issued). “Theoretically, the legislative power is the authority to make, order, and repeal, the executive that to administer and enforce, and the judicial, that to interpret and apply, laws.” Richardson v. Young, 525 S.W. 664, 668 (Tenn. 1910). Accordingly, the Governor may exercise his discretion in regard to designating a “Tennessee Day of Prayer” pursuant to this legislation. ROBERT E. COOPER, JR. Attorney General and Reporter WILLIAM E. YOUNG Solicitor General that it is otherwise acceptable under Marsh v. Chambers, 463 U.S. at 786-95, which upheld legislative opening prayers as an example of “ceremonial deism” and in light of the “unambiguous and unbroken history” of the practice. 705 F.Supp.2d at 1055-64. Page 4 STEVEN A. HART Special Counsel Requested by: The Honorable Mark Pody State Representative 203 War Memorial Building Nashville, TN 37243-0146