JudicialLocal NewsFifth Circuit Says Justice of Peace May Continue to Open Court with Prayers by Volunteer Chaplains

The Fifth Circuit Court of Appeals has declared that Judge Wayne Mack may continue his practice of inviting volunteer chaplains to open the court in prayer.
July 13, 2021
After years of fighting to defend the practice, the United States Court of Appeals for the Fifth Circuit has recognized that a justice of the peace in southeast Texas is not violating the First Amendment’s Establishment Clause by having volunteer chaplains give an invocation before his court proceedings begin.

The court granted a stay pending appeal after a district judge held that Judge Wayne Mack had violated the Establishment Clause. “Judge [Mack] made a strong showing that the district court erred,” the panel of judges stated in its decision.

Seven years ago, Judge Mack, who is a justice of the peace in Montgomery County, established a chaplaincy program of clergy and laypersons from a variety of faiths and denominations. The chaplaincy program was created to aid members of the community while he conducts independent death investigations. The chaplains are regularly invited to offer a prayer or encouraging words before the first case is called. 

In the opinion of the Fifth Circuit panel authored by Judge Andrew Oldham, the court found that Mack is likely to succeed on appeal because the Supreme Court has held that “our Nation’s history and tradition allow legislatures to use tax dollars to pay for chaplains who perform sectarian prayers before sessions.” 

The chaplaincy program in Mack’s court raises even fewer concerns because it is completely voluntary and no tax dollars are used to fund it. Furthermore, participation in the prayers by court attendees is totally optional, with a sign outside and inside the courtroom describing the brief opening ceremony and declaring that “you are not required to be present or participate.” 

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First Liberty Institute, a nonprofit legal organization committed to defending religious liberty, represents Mack.

“Judge Mack is grateful that the Fifth Circuit allowed him to continue following our nation’s long history and tradition of opening court proceedings with prayer,” said Justin Butterfield, deputy general counsel to First Liberty in a press statement. “We agree with the Fifth Circuit’s conclusion that prohibiting the prayers was wrong. It’s time for the Freedom From Religion Foundation and the State Commission on Judicial Conduct to end their harassment of Judge Mack.”

The Freedom from Religion Foundation (FFRF), which has targeted Mack for his chaplaincy program since 2014, first filed a complaint with the Texas State Commission on Judicial Conduct. The commission issued a “letter of caution” to Mack in November 2015.

The State Commission on Judicial Conduct then sent a request for an opinion to the Texas Attorney General Ken Paxton in February 2016 stating it believed the program to be a violation of the Establishment Clause. Paxton’s office rejected that viewpoint and stated, “we believe a Justice of the Peace’s practice of opening daily court proceedings with a prayer by a volunteer chaplain as you describe … does not violate the Establishment Clause.”

Undeterred, the FFRF filed suit against Mack in 2017. The case was dismissed. Eight months later they filed another lawsuit in the United States District Court for the Southern District, Houston Division.  

U.S. District Judge Kenneth Hoyt granted a motion for summary judgment to FFRF at the end of May, saying the opening ceremony including a prayer by a volunteer chaplain “flies in the face of historical tradition and makes a mockery of both, religion and law.” 

On June 1, the Fifth Circuit granted Mack a temporary stay pending appeal which ordered that “Judge Mack is permitted to continue his scheduled ceremonies pending further order of this court.” 

Despite that declaration by the Fifth Circuit, the Texas State Commission on Judicial Conduct opened a new investigation on June 24 asking him to defend the opening prayer in his courtroom as constitutional. 

The Fifth Circuit didn’t take kindly to the commission’s ignoring its original temporary stay issued on June 1. “The Commission never once cited our order or acknowledged Judge Mack’s appeal. Nor did the Commission recognize that we specifically authorized Judge Mack to continue his ceremonies pending further order of this court.”

The court made its intentions crystal clear, ending its order by stating, “Given the ongoing ‘Inquiry’ by the Texas State Commission on Judicial Conduct, notwithstanding our prior stay order, this panel will retain power to enter any additional orders that are necessary and appropriate in aid of our jurisdiction.”

The case will continue on appeal for a final decision on the merits by the Fifth Circuit, Butterfield told The Texan. The timeline for a final decision is uncertain, but the order granting the stay indicates a high probability of success for Judge Mack, he added.


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Kim Roberts

Kim Roberts is a regional reporter for the Texan in the DFW metroplex area where she has lived for over twenty years. She has a Juris Doctor from Baylor University Law School and a Bachelor's in government from Angelo State University. In her free time, Kim home schools her daughter and coaches high school extemporaneous speaking and apologetics. She has been happily married to her husband for 23 years, has three wonderful children, and two dogs.