Prayer for the court

Prayers, whether Christian or interfaith, have opened official meetings throughout U.S. history—including in the U.S. Congress. Yet in Texas, a justice of the peace has spent several years fighting in court to maintain his habit of allowing chaplains to give an invocation prior to courtroom proceedings.

A federal court ruled against Montgomery County Judge Wayne Mack in May, calling his practice one that “flies in the face of historical tradition, and makes a mockery of both religion and law.”

In a brief filed with a federal appeals court on Sept. 22, First Liberty Institute attorneys disagreed, arguing the judge’s practice is “entirely consistent with our nation’s tradition of opening government proceedings (including judicial proceedings) with chaplain-led invocations—a tradition that dates back to the founding.”

Mack began a volunteer chaplaincy program seven years ago after he was called to be coroner at a young woman’s death and could not find a chaplain to assist the family. Volunteer chaplains are primarily a resource to the community, but Mack also asks them to solemnize court proceedings by offering a prayer or encouraging words beforehand.

Trouble began several years ago when an atheists organization, the Freedom From Religion Foundation (FFRF), complained about the practice. In response, Mack took steps to ensure no one felt compelled to participate, telling those present in the courtroom they did not need to attend. Yet the organization deemed that insufficient.

Three years after Texas State Commission on Judicial Conduct rejected the FFRF’s 2014 ethics complaint, the FFRF sued the judge, arguing his courtroom prayers violated the First Amendment’s establishment clause.

A federal judge agreed. In a January 2018 ruling, U.S. District Judge Ewing Werlein Jr. rejected Mack’s argument that his practice was similar to that of opening legislative proceedings with prayer. Werlein ruled that a legislative prayer was directed at legislators, not at legal parties and their attorneys.

Yet in a ruling on a motion to block the court’s order temporarily, a unanimous panel of the 5th U.S. Circuit Court of Appeals disagreed with Werlein, concluding that unlike prayers before a legislature, “Judge Mack’s chaplaincy program raises fewer questions under the establishment clause because it uses zero tax dollars and operates on a volunteer basis.”

Judges also did not seem to appreciate action by the State Commission on Judicial Conduct in reopening its investigation of Mack on June 24. “The commission never once cited our order or acknowledged Judge Mack’s appeal,” wrote Circuit Judge Andrew S. Oldham. “Nor did the commission recognize that we specifically authorized Judge Mack to continue his ceremonies pending further order of this court.”

A final ruling from the appeals court is expected later this year or in early 2022. Until then, in Mack’s courtroom, prayer will continue.