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The Tennessean
Angele Latham, Nashville Tennessean
November 27, 2022

A national religious liberty law firm, which recently won a major U.S. Supreme Court case on prayer at high school football games, is now supporting a Tennessee county’s inclusion of Judeo-Christian references in an official document.

First Liberty, which defends cases of religious liberty and expression, won before the high court on behalf of Washington football coach Joseph Kennedy in the recent Kennedy v. Bremerton School District case.

Kennedy accused the school district of violating his First Amendment rights after he was put on administrative leave for refusing to stop praying with students mid-field after games ended. In a historic decision, the Supreme Court ruled in Kennedy’s favor, changing decades-held precedents on the separation of church and state and spurring debates on how far the new standard goes.

Now, the firm is weighing in on the controversy in Sumner County. The county commission included a sentence in a newly passed preamble to an official document ensuring the commissioners act “reflective of the Judeo-Christian values inherent in our nation's founding.”

The Kennedy case is spurring disagreement on if and how it can apply to Sumner County.

Kennedy case establish new First Amendment test, lawyer says

Roger Byron, senior counsel at First Liberty, sent Nov. 9 letter to the commission detailing the results of the Kennedy case and assuring the commission that its decision was not in violation of the First Amendment’s Establishment Clause.

“Kennedy was a landmark decision that clarified and now controls Establishment Clause matters under the First Amendment,” Byron said in the letter.

In an interview with The Tennessean, Byron said in his view conversations surrounding the preamble were leaving out key legal arguments.

“None of the commentary — none of the advice that we saw — even mentioned Kennedy and its requirements," Byron said.

"And Kennedy is the landmark Establishment Clause decision.” Byron argued the Kennedy decision cleared the Sumner County Commission, as the Kennedy case established “where the line is” for religious expression.

“Kennedy makes it clear — where is the line between what is fine under the First Amendment, as far as Establishment Clauses go, and what isn’t,” he said. “And the line is, ‘Does the government action or government decision faithfully reflect the understanding of the founding fathers? ’… The Establishment Clause must be interpreted by reference to that — by the historical practices and understanding of the founders.”

Byron said the standard for the past 50 years — known as the Lemon Test and the Endorsement Test — are no longer applicable in the wake of the Kennedy decision.

Under the Lemon Test, governments could could assist religion only if the primary purpose was secular, the aid neither promoted nor inhibited religion and there was no excessive entanglement between church and state.

“The court made clear that (the Lemon Test) has been abandoned and that in place of that test, we now have Kennedy’s requirements," Byron said. "Now we to evaluate these questions on whether or not the government is faithfully reflecting the understanding of the founding fathers."

Based on Kennedy, Byron said the Sumner County preamble easily falls within the realm of allowable religious expression.

“When you look at the historical practices and understandings of our founding fathers, and where the county refers to Judeo-Christian values,  we're talking about the values of honesty, integrity, fair-dealing, hard-work, justice and basic morality,” he said. “Those values permeate our founding documents. They permeated the understandings of the founding fathers. So yes, I see what this dedication to these values is and it’s perfectly in line with established law.”

Although Byron considers this case to be “in line” with established law, he would not detail what he considered a violation of the Establishment Clause.

Bryon said the same arguments would not apply if the preamble mentioned a faith tradition beyond Christianity.

“We know that many of our founders were deeply committed and all of them deeply influenced by what we call Judeo-Christian values,” he said. "So the question there would be: were they deeply influenced by Hindu values, for example? Do we find historical practices in understanding that indicate that?”

Essentially, according to Byron, the preamble is acceptable because it references values that are consistent with “historical practices and understandings” — values that happen to be Judeo-Christian. If a different religion was referenced, it would only be acceptable if the values referenced could be backed up by historical evidence.

‘History and tradition’ misconstrued, Freedom From Religion lawyer says

Pushback against the preamble came swiftly after its adoption in early October. The county's own interim attorney advised the commission against passing it, saying it would be an Establishment Clause violation.

David Hudson, a professor at Belmont University’s College of Law and a First Amendment expert, called it “clear violation,” and Ken Paulson, director of the Free Speech Center at Middle Tennessee State University, said it was “illegal” and “just plain rude.”

Following First Liberty's letter to the commission, Sammi Lawrence, a legal fellow with the Freedom From Religion Foundation, disagreed with the interpretation that the Kennedy case applies to Sumner County.

“First off, I would say that the Kennedy case is very much confined to its facts in the public school context, and in the ‘individual private prayer within the school context’ for school employees,” Lawrence said.

“I don't really see Kennedy applying to this situation much at all. It is true that the court and in the Kennedy opinion said that the Establishment Clause should be evaluated based on history and permission, but they were not specific as to what that even meant.”

Lawrence said Kennedy could not be used as a testing standard as Lemon was before.

“I don't agree that there is a so-called Kennedy test,” she said. “I think that right now we're in a space where we don't know what ‘history and tradition’ necessarily even means. But I would argue that history and tradition certainly does not mean a local government just gets to declare that it's based on Judeo-Christian values.”

Lawrence did agree the Lemon Test was overruled, but said the boundaries of the Establishment Clause are still being explored under this new case.

“But they weren't specific as to what test replaces it," she said. "They just said the Establishment Clause should be evaluated based on history and tradition — but that's not really a test. That's a very vague statement, right? What history what tradition? How far back is that going?”

If the case is purely based on the merit of tradition, Lawrence said it is a prime example of the misconstruing of America’s religious history.

“This is actually a fantastic example because the entire concept of ‘Judeo-Christian values’ did not even exist until the mid-1900s,” she said. “That term was not a term that anyone used. So ‘Judeo-Christian values’ were not a part of the framing of the Constitution because the Founding Fathers would never have conceptualized Judaism or Christianity that way.”

Lawrence said the preamble undoubtedly showed favoritism to Christianity.

“And under current Supreme Court precedent, the government is supposed to be neutral towards religion, non-religion and between religions," she said. "Even in the Supreme Court cases of Kennedy and Carson v. Makin — those reinforced the majority opinion that the government is supposed to be neutral.”

Turbulent future predicted

Going forward, both Lawrence and Byron are preparing for a turbulent future for the standards of the First Amendment, as a majority-conservative U.S. Supreme Court sets the stage for rulings that are friendlier toward religious expression than previous iterations of the court.

“That is something that we are monitoring,” Lawrence said. “We are looking at strategies as an organization to determine what we think the direction of the First Amendment and religious cases are going to be, and how we will have a place in that.” 

In a social media post, the First Liberty Foundation expressed their eagerness to “go on the offense to restore faith in America” following the Kennedy case.

“What I see now is that we have a judiciary, including the Supreme Court, that is willing to apply and interpret the actual law and faithfully do so,” Byron said. “Clearly with Kennedy we have returned to that. We are going to apply what the law actually is. We are going to take the Constitution and apply it for what it actually says. So when you have a judiciary or a court that clearly sees and understands the importance of preserving and defending religious freedom, our free speech rights and all of our enumerated rights in the Constitution, I think only good things are coming.”

The USA Today Network - Tennessee's coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners. This article originally appeared on Nashville Tennessean: Fresh off prayer win, firm backs Sumner County Judeo-Christian preamble

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