On September 29, an appeals court in the state of Louisiana decided to allow a judge to lead prayer in his public courtroom, overturning last year’s verdict from a district court in Texas.
FLI Insider: "We recently received news of a victory for our client, Judge Wayne Mack. The U.S. Court of Appeals for the 5th Circuit upheld Judge Mack’s practice of recognizing volunteer chaplains who sometimes open court sessions with a brief invocation. https://t.co/f9qjXjCZI9 pic.twitter.com/srd6XKraRn
— Wayne Mack (@JudgeWayneMack) October 9, 2022
Judge Wayne L. Mack has been a judge in Montgomery County, Texas, since 2014. In the 1980s, he majored in theology at the Jackson College of Ministries and was a formally ordained minister.
According to the original lawsuit filed in May 2021, attorney John Roe (pseudonym) contacted the Freedom From Religion Foundation (FFRF), of which he is a member, with complaints about the court’s behavior. According to Roe, each day started with an overview of the court’s “Chaplaincy Program,” wherein an assigned chaplain (usually Protestant) delivered a prayer of their choosing, which Judge Mack invited everyone to stand up for.
FFRF maintained that the prayer violated the Establishment Clause of the federal Constitution.
In response to a letter he received from FFRF, Judge Mack installed signs outside and a television in the back of the courtroom which read, “It is the tradition of this court to have a brief opening ceremony that includes a brief invocation by one of our volunteer chaplains and pledges to the United States and Texas state flag. You are not required to be present or participate. The bailiff will notify the lobby when the court is in session.”
A former litigant in the court also stated that during his hearing in 2020, there was no opportunity to leave the courtroom before the prayer and the start of proceedings on some days. On other days, when there was just a single bailiff, people could open the doors to escape, but in full view of the judge. He claimed that his choice to leave the courtroom affected the outcome, maintaining that the judge “acted unprofessional and hostile” to him. Roe, meanwhile, stopped taking clients that would assign him to Judge Mack’s courtroom.
On May 29, 2019, FFRF and Roe sued the judge in both his individual capacity and official judicial capacity on behalf of the state of Texas. On May 21, 2021, FFRF and Roe won their lawsuit. The decision read that it was a violation of the Establishment Clause and the ceremony made a mockery of both religion and law.
On appeal, however, a three-judge panel ruled two-to-one to overturn that decision. The court says that it ruled on account of historical practice, using the same tactic the Supreme Court used in July 2019 to allow a 40-foot cross to stand on public land in Maryland. In that case, the court ruled 7-to-2 that such monuments are not religious but historic.
Dissenting Judge E. Grady Jolly wrote, "the plaintiffs had produced considerable evidence that Judge Mack’s prayers are coercive to those who attend court sessions.” He added, “For the majority to find that there is no evidence of coercion suggests, in my opinion, willful blindness and indisputable error.”
Annie Laurie Gaylor, co-president of FFRF, said of the ruling, “This is a dishonest decision. A courtroom is not a church, and a judge’s bench should not be a pulpit.”
