# First Liberty Institute The Texas-based religious-liberty litigation shop best known for *Kennedy v. Bremerton School District* (2022) — the Supreme Court case that abandoned the *Lemon v. Kurtzman* (1971) Establishment Clause test and replaced it with a "history and tradition" standard, opening doctrinal space for the renewed Ten Commandments, classroom-religion, and public-school-prayer litigation now driving the post-*Bremerton* CN legislative wave (Louisiana HB 71, Texas SB 1396, Oklahoma school-funding initiatives). Founded in 1972 (originally as Liberty Legal Institute, renamed First Liberty Institute in 2014), and led since 1997 by Kelly Shackelford, First Liberty operates a docket concentrated on **military, public-school, and government-employee religious-expression cases** — the niches where the line between protected free exercise and prohibited establishment is most often litigated. First Liberty's significance in the [[Christian Nationalism Ecosystem]] is structural and doctrinal. The *Bremerton* outcome — the abandonment of *Lemon* and substitution of a history-and-tradition test — was the largest doctrinal change in Establishment Clause jurisprudence in fifty years, and it was engineered through First Liberty's case selection, plaintiff vetting, and amicus coordination. The post-*Bremerton* legal environment makes possible CN policy initiatives (Ten Commandments display, classroom chaplains, religious-funding for charter schools) that would have failed Establishment Clause review under the prior framework. First Liberty's docket continues to produce the litigation vehicles for testing the limits of the new standard. For the Right Wing KB, First Liberty Institute is one of the **four major religious-liberty litigation shops** that constitute the Legal-Litigation Infrastructure layer of the [[Christian Nationalism Ecosystem]] (alongside [[Alliance Defending Freedom]], [[Becket Fund]], and [[Liberty Counsel]]). Its strategic specialization is the public-school and military-religious-expression docket; its institutional positioning is more conservative-establishment than Liberty Counsel's culture-war polemic but more aggressively docket-shaping than Becket's pluralism-credentialed positioning. The four shops together — coordinated through the Federalist Society judicial pipeline and the Council for National Policy donor architecture — constitute the legal arm of the contemporary CN coalition. ## Founding and Leadership First Liberty was founded in **1997** by **Kelly Shackelford** (originally as **Liberty Legal Institute**; renamed **First Liberty Institute** in **2014**). Shackelford, a Texas attorney and constitutional litigator, built the organization around religious-liberty cases in the public-school, military, and government-employee contexts — niches where the Establishment Clause and Free Exercise Clause most directly collide. **Hiram Sasser** serves as executive general counsel and has been Shackelford's primary litigation partner throughout the organization's growth. The legal team has expanded from a small Texas operation to a national litigation firm with approximately **$22 million** in annual revenue (recent reporting). Note: The founding date in some sources is listed as 1972, but the organization in its current institutional form dates to Shackelford's 1997 founding. Earlier iterations operated under different names and structures. ## Pre-Bremerton Docket Before the *Kennedy v. Bremerton* breakthrough, First Liberty built its reputation on a docket of **military religious-expression** and **public-school prayer** cases: **Military cases:** First Liberty represented service members disciplined for religious expression — chaplains restricted from praying in Jesus' name, officers disciplined for displaying religious materials, and similar cases testing the boundary between military discipline and religious exercise. The military-religious-expression docket gave First Liberty a distinctive niche among the religious-liberty firms. **Public-school cases:** First Liberty represented students and teachers disciplined for religious expression in public schools — graduation prayers, student-led Bible clubs, teacher religious displays — building the case law that would eventually support the *Bremerton* vehicle. **Government-employee cases:** Religious-display cases (Ten Commandments monuments, nativity scenes on public property) and government-employee religious-expression cases. ## *Kennedy v. Bremerton School District* (2022) The most consequential Establishment Clause case in fifty years, and First Liberty's institutional-defining achievement. **The Facts:** **Joe Kennedy**, a football coach at Bremerton High School in Bremerton, Washington, began kneeling at the 50-yard line after games to offer a brief silent prayer. The practice evolved to include spoken prayers, and students and community members began joining. The school district, concerned about Establishment Clause liability, directed Kennedy to stop the practice. Kennedy refused and was not rehired for the following season. First Liberty took the case and engineered it as a vehicle to challenge the **Lemon v. Kurtzman** (1971) Establishment Clause test — the three-part framework (secular purpose, primary effect neither advancing nor inhibiting religion, no excessive government entanglement) that had governed Establishment Clause analysis for over five decades. **The Decision (June 27, 2022):** The Supreme Court ruled **6-3** in Kennedy's favor. Justice **Gorsuch**, writing for the majority, held that Kennedy's prayer was protected private religious expression, not government-sponsored religion — and critically, stated that the *Lemon* test had been "long ago abandoned" by the Court. In its place, Gorsuch directed courts to interpret the Establishment Clause by reference to "historical practices and understandings" — the **history-and-tradition test**. The dissent (Sotomayor, joined by Breyer and Kagan) argued that the majority had mischaracterized the facts — Kennedy's prayer was not silent and private but public and participatory, with students feeling coerced to join — and that the abandonment of *Lemon* opened the door to government-sponsored religious activity. ### The Doctrinal Shift The replacement of *Lemon* with the history-and-tradition test was the **largest shift in Establishment Clause jurisprudence since *Lemon* itself** in 1971. Under *Lemon*, government actions that appeared to endorse religion were presumptively unconstitutional. Under the history-and-tradition test, government religious practices are permissible if they have historical precedent — a standard that favors Christian practices (which have the deepest historical roots in American governance) and makes it substantially harder to challenge religious displays, government-sponsored prayer, and religious-school funding. ## Post-Bremerton Docket and Legislative Consequences *Bremerton* opened the floodgates for CN-aligned legislation and litigation that would have been clearly unconstitutional under *Lemon*: **Louisiana HB 71 (2024):** Requiring Ten Commandments displays in every public-school classroom. First Liberty has been involved in defending the law, which is currently the subject of federal litigation. A district court issued a preliminary injunction; the case is pending before the **Fifth Circuit** (en banc). **Texas SB 1396:** Similar Ten Commandments legislation at the state level, directly enabled by the *Bremerton* doctrinal framework. **Oklahoma school-chaplain programs:** State legislation authorizing religious chaplains in public schools as an alternative to secular counselors. **Classroom-prayer cases:** Multiple cases testing the limits of teacher and student religious expression in public schools under the new history-and-tradition standard. First Liberty's active docket continues to produce test cases that push the boundaries of the post-*Bremerton* framework — systematically expanding the space for religious expression in public institutions. ## Coordination with Other Religious-Liberty Firms First Liberty operates within a **coordinated docket-division system** with [[Alliance Defending Freedom]], [[Becket Fund]], [[Liberty Counsel]], and [[American Center for Law and Justice]]. Each firm has a strategic specialization: - **First Liberty:** Public-school prayer, military religious expression, government-employee religious expression, Ten Commandments/religious-display cases - **ADF:** Broadest docket — religious-speech, marriage/sexuality, life, school-choice, campus free-speech - **Becket:** Establishment-respectable doctrinal engineering — RFRA, ministerial exception, religious-school funding - **ACLJ:** Populist-evangelical — school prayer, international religious-liberty, Trump-defense legal work - **Liberty Counsel:** Aggressive culture-war litigation — marriage, conversion therapy, COVID-church-closure cases The firms coordinate through overlapping board relationships, [[Federalist Society]] networks, and [[Council for National Policy]] donor architecture. Amicus briefs in each firm's cases are routinely filed by the others. ## KB Significance First Liberty is the **Establishment Clause demolition specialist** of the [[Christian Nationalism Ecosystem]]'s legal-litigation infrastructure. *Kennedy v. Bremerton* was the single most consequential legal victory for the CN policy agenda in the 2020s — the abandonment of *Lemon* and adoption of the history-and-tradition test created the doctrinal space for Ten Commandments legislation, public-school prayer revival, religious-chaplain programs, and the broader CN legislative wave now moving through red-state legislatures. First Liberty engineered this outcome through deliberate case selection and plaintiff vetting, making it the firm most directly responsible for the post-2022 Establishment Clause landscape. ## See Also - [[Alliance Defending Freedom]] - [[Becket Fund]] - [[Liberty Counsel]] - [[American Center for Law and Justice]] - [[Federalist Society]] - [[Christian Nationalism Ecosystem]] - [[Ten Commandments]]