Federal appeals court greenlights judge’s chaplaincy program

Chaplains in the U.S. House and Senate typically open the day with a prayer. Public, government-sponsored prayers that are noncoercive and nondiscriminatory have been a part of American tradition since the country’s founding. Yet when a Texas justice of the peace instituted a chaplaincy program for his courtroom, a national atheist organization cried foul, contending that those in the courtroom would feel pressured by a prayer.

On Thursday, a divided federal appeals court panel disagreed. Circuit Judge Jerry E. Smith, joined by Circuit Judge Kurt Englehardt—both Republican appointees—upheld Texas Judge Wayne Mack’s practice of inviting chaplains of various faiths to open court with prayer. Their decision reversed a May 2021 district court ruling. The ruling followed a unanimous July 2021 decision by a separate appeals court panel putting a hold on the lower court decision. Looking to history and tradition, Smith concluded that the Texas judge’s program—one open to all faiths and which did not compel anyone to attend or watch—was not coercive.

The decision is one more opinion recognizing that the Supreme Court has rejected the test established by its 1973 ruling in Lemon v. Kurtzman for deciding whether governmental action violates the Establishment Clause of the First Amendment. Smith noted that the test—which focused on whether the government appeared to endorse religious belief—was “too easily manipulated to shed light on history’s relevance.”

Under Mack’s program, a bailiff invited those who did not want to participate or witness the prayer to leave the courtroom before the judge entered, returning after the prayer. But the challengers—a Texas attorney using the pseudonym “John Roe” and the Freedom From Religion Foundation, which represented “Roe”—claimed Mack was biased against those who skipped the prayer. Roe, who previously represented clients appearing before Mack, said a lawyer would be “crazy to leave” the courtroom for fear of getting on the wrong side of Mack. So he never did leave.

“Mack … takes great pains to convince attendees that they need not watch the ceremony—and that doing so will not affect their cases,” wrote Smith. “Some attendees say they feel subjective pressure anyway. Yet the plaintiffs have no evidence suggesting that ‘coercion is a real and substantial likelihood.’”

Roe’s subjective perception of bias failed to persuade the appeals panel majority. “None of the complainants in the record has even tried to leave the room for the prayer,” Smith observed. “So our only evidence of what happens to those who leave comes from Mack’s side of the dispute.” He concluded that there had to be some objective evidence of bias to conclude that Mack’s program was unconstitutional, and he found none.

While agreeing that the district judge was wrong to rule against Mack, Circuit Judge E. Grady Jolly sharply dissented from the court’s reading of the law. Jolly—also a Republican appointee—accused the majority of coming up dry on historical precedent. He said the other judges disregarded facts they did not like and failed to acknowledge evidence of coercion. Jolly pointed to the Pentecostal minister’s campaign promise to bring prayer to the courtroom and his previous criticism of those opposed to what he derisively called “his prayer ceremony,” concluding, “it is reasonable to believe that nonparticipation will draw his ire.”

First Liberty Institute’s Jeremy Dys, who represented Mack, disagreed, noting that adherents of any religion may offer prayers in the court. He welcomed the court’s use of history and tradition in resolving the issues—not simply whether the practice might cause offense to the nonreligious. “Just because someone is religious doesn’t mean that their presence automatically creates coercion,” Dys said. “Quite the opposite. Their presence actually contributes to the diversity of our country, and that includes religious diversity.”