Civil SocietyJudicialLocal NewsMontgomery County Justice of the Peace Opening Prayer, Chaplain Program Upheld by Fifth Circuit

Judge Wayne Mack was sued by the Freedom from Religion Foundation (FFRF) and an anonymous attorney known as John Roe, who claimed Mack was violating the Establishment Clause of the First Amendment. The judge was represented by the law firm of Gibson, Dunn, and Crutcher LLP as well as First Liberty, a non-profit legal group that defends religious freedom.

Eight years ago, Mack 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.

Judge Jerry Smith authored the opinion for the three-judge panel that granted Mack’s motion for summary judgment after concluding that the opening prayer is “noncoercive” and reversing the district court’s judgment.

Smith began his opinion by noting the plaintiffs’ “cry of coercion” about the court’s opening ceremony that includes prayer. After evaluating the plaintiffs’ evidence of coercion such as “perception of disfavor” by Mack and that “nonparticipation affected their cases,” the majority was unpersuaded.

“Want of evidence showing coercion dooms their case,” Smith wrote.

Last July, the Fifth Circuit found that Mack was 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.”

In October 2021, 17 Republican Texas legislators also filed an amicus brief in the Fifth Circuit asking it to uphold Mack’s voluntary chaplain program.

“I am eternally grateful to the judges on the Fifth Circuit who upheld this historical practice,” Mack said in a press release, adding that he is looking forward to “continuing to serve the people of Montgomery County.”

In its opinion, the Fifth Circuit reviewed the ceremony in Mack’s court as compared to historical practices. “It is now well established that public, government-sponsored prayer has long enjoyed a place in American life,” the court wrote as it began its analysis.

“The Fifth Circuit rightly concluded that Judge Mack’s brief ceremony respects a rich historical tradition of opening judicial proceedings with an invocation,” said Bradley Hubbard, the Gibson Dunn attorney who argued the case before the court in April.

“As the Court explained, the ‘history, character, and context’ of Judge Mack’s ceremony ‘show that it is no establishment at all,’” Hubbard noted.

FFRF was “deeply dismayed” by the court’s decision, according to a press release.

“A courtroom is not a church, and a judge’s bench should not be a pulpit. This is a dishonest decision, both in claiming a tradition of courtroom prayer and in denying that it is coercive,” FFRF co-president Annie Laurie Gaylor said.

First Liberty applauded the decision.

“America has a rich tradition of opening public meetings — including judicial proceedings — with an invocation,” said Jeremy Dys, Senior Counsel for First Liberty.  “Welcoming a volunteer chaplain to lead an invocation according to the tradition of his or her faith reflects the very best of our nation’s values.”

Judge Grady Jolly wrote a separate opinion, concurring and dissenting in part. He disagreed with the majority that there is no evidence of coercion in the opening prayer ceremony, and also criticized them for “inaccurately present[ing] Supreme Court precedent” about government-sponsored prayer.

Jolly would have sent the case back to the district court for a hearing “allowing for the development of a full record and an appropriate resolution by a factfinder.”