In 2019, the Freedom from Religion Foundation (FFRF) and Attorney John Roe sued Judge Wayne Mack, of Montgomery County, Texas. FFRF and Roe filed suit over Mack’s practice of opening court business with a prayer delivered by faith leaders who participate in his volunteer chaplaincy program. In a recent decision, the Fifth Circuit Court of Appeals upheld the courtroom prayer.
Before Judge Mack was elected as a Justice of the Peace, he was a Pentecostal minister and worked for Montgomery County as a volunteer coroner. When he became a judge, he created a chaplaincy program, Justice Court Chaplaincy Program (JCC). JCC has a representative from “every mosque, every temple, every synagogue, every church you can imagine” (FFRF v. Mack 2019). Mack has actively sought diverse participation from Protestant, Catholic, Buddhist, Hindu, Jewish, and Islamic volunteer chaplains. In terms of the opening ceremony prayer, which includes prayers and encouraging words, those with business before the court are not required to stay in the room and are told, through a public announcement, that their involvement will not be considered by the court in its decisionmaking.
John Roe, an attorney who has appeared before Judge Mack on many occasions, claims that each time a Christian Chaplain delivered a Christian prayer. Roe is religiously unaffiliated and felt compelled to remain in the courtroom during the prayers. He filed suit with the Freedom from Religion Foundation, a non-profit organization that advocated for the separation of church and state, with the claim that Judge Mack’s opening prayers violate the Establishment Clause of the First Amendment, due to its coercive effect and promotion of denominational discrimination.
The decision of the Fifth Circuit Court of Appeals depends on two Supreme Court precedents. The first, Marsh v. Chambers (1983), upheld the chaplaincy practice in state legislature sessions, with the reasoning that chaplaincy practice had become a part of the fabric of American society. In Town of Greece v. Galloway (2014), the New York town board began public meetings with a prayer given by a member of the Christian clergy. The Court ruled that the Establishment clause was not intended to prohibit legislative prayer, which was meant to acknowledge religion’s role in society. Both cases, therefore, upheld the presence of prayer in legislative sessions.
While the plaintiffs argued that Mack’s practice of prayer can be distinguished from Galloway in that it occurs during a judicial session, is coercive, and failed to maintain a policy of denominational nondiscrimination. The Fifth Circuit Court of Appeals argued that the fact that Judge Mack invites the public to leave the court before invoking God makes his opening ceremonies even less coercive than other courtroom prayers, which after a historical analysis, is similarly weaved into the fabric of American society. In addition, while the "plaintiffs cry coercion," Mack maintains his policy of denominational nondiscrimination by letting chaplains from different faiths lead the prayers and no consequences befall anyone who does not participate, so his courtroom prayer ceremonies are therefore lawful. In summary, this decision reaffirms the precedent that both legislative and judicial prayer is compatible with the Establishment clause.
I agree with the decision of the Fifth Circuit Court of Appeals to uphold Judge Mack’s opening courtroom prayers. In my initial reading of this decision, I questioned whether a lawyer or client’s refusal to participate in Judge Mack’s prayer could result in prejudice. Could nonparticipation ensure that Mack acts hostile toward a litigant who did not participate in the prayer? However, Roe could not identify specific instances of bias against him, his clients, or anyone else. Mack’s prayers are not threatening to religious minorities or nonbelievers, and he maintains a policy of religious diversity in his volunteer chaplaincy program. Furthermore, there was no evidence that chaplains preached “damnation, denigration, or conversion” (FFRF v. Mack 2019), and both clients and lawyers are allowed to leave the room for the prayer. Most importantly, while the argument that there is a historical practice of courtroom prayer is strong, the strongest argument in favor of the court’s opinion is that subjective offense does not equate to coercion. In other words, the Constitution does not protect people from being subjectively offended, and since there is no proof of coercion or religious discrimination, the Establishment clause is not violated and Judge Mack’s policy of prayer is therefore protected under the First Amendment.
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7 comments:
This was a really interesting case! I agree with your position and the Fifth Circuit Court of Appeals. Moreover, the prayer was not a specific christian prayer, and no one was coerced into staying. Unlike children feeling coerced into staying, everyone in the court room are consenting adults with the autonomy to leave during prayer. It is also important to note that during testimonies people on the stand are required to be under oath of a bible or other religious text. Therefore, religion is already weaved into the litigation process and this non-coercive prayer is not different.
I think we commonly see instances where the lines between individuals that hold some kind of power through their job or title (given through state and school) and religion interact. I think this is another instance of this. In this case, I do not see the prayer truly being entangled with state affairs although it does take place in a very political atmosphere. Nonetheless, this does not seem like a violation of the Establishment Clause because there is no promotion nor punishment for choosing to be a part of prayer or not. However, I think Judge Mack and those leading the prayer should be cautious of making sure their religious activities and beliefs do not interfere with their job and remain neutral to others, especially those who do not share the same beliefs).
I really enjoyed reading your post, Molly! As to whether I agree with the decision of the court, I am not quite sure where I stand on that front. I do see and understand that the prayer was not specific to Christianity, and no one was technically forced or coerced into staying in the room and informed that their involvement would not be considered in the decision-making. However, I just cannot see how this spiritual ceremony which is obviously so important to Judge Mack that it is incorporated into how he opens court business, that someone who chooses to step out would not somehow impact his decision because of his implicit bias. As Donzhei had mentioned above, there is no real separation between an individual who holds a position of power and religion. Whether it being a direct or indirect connection, there is a connection that interweaves the two nonetheless.
I tend to agree with your argument. Any case where a religion is brought into a government building can be very complicated. My biggest question was what bad could this create if a lawyer or defendant did not participate in this prayer, but I thought you laid out a strong example where that is not an issue. I also enjoyed the prior cases you brought into this post because I feel they strengthened your argument. Overall outstanding post and I'm interested to see how far this case may go up the justice ladder.
In my opinion, I see that Mack is allowed to have views that his court should start with prayer. I do not believe that he should be allowed to actually carry out with having prayer to start court, as court houses are government buildings where people of many religions and no religion come to fulfill a secular purpose. I could see this as impartialiality, as it could seem like Mack would favor those that are religious in court.
Great post! This is really interesting and I think you overviewed this case very well. Personally, I agree with Austin's comment; I think the judge is entitled to his beliefs, but not necessarily the right to put those beliefs into action. Overall, I think this is an unconstitutional establishment of religion. I don't see a compelling state interest to have a prayer opening up the courtroom proceedings. I see two counterarguments: 1) the prayers are derived from a variety of religions and denominations (therefore, neutral between religion), and 2) no one is mandated to remain in the room during the prayer. However, I do not see this finding to be neutral between religion and non-religion. It is absolutely true that for someone whose fate is left up to the judge (...the very same judge who initiated this prayer program) may feel considerable pressure to stay in the courtroom as opposed to standing up and leaving in front of everyone else. This could potentially be a burden on one's religious freedom. For these reasons, I disagree with the Fifth Circuit Court's decision.
Judge Mack clearly took every opportunity to make sure that a broad range of faiths and religions were represented in the opening prayers. My understanding of the establishment clause is that it requires government institutions to maintain a neutral stance towards religion. This, however, does not mean favoring secularism over religion. As best I can ascertain from the context provided, the opening prayers of Mack's court met this standard, not explicitly promoting any religion. All attendees were free to step out of the courtroom during the prayers, so no coercive force was exercised favoring spirituality over nonreligion.
As to the claim that Judge Mack might give some deference to individuals who chose to remain in the courtroom during the prayers, I am unable to understand how that would factor into the constitutionality of the prayers. Judges are charged with acting as impartial facilitators of court proceedings. If a judge was to display bias in the courtroom, yes, that would be unlawful, but I don't believe Mr. Roe is accusing Judge Mack of abusing his charge of impartiality. Even if Roe was making that accusation, that is a question of Mack's professional performance, not the constitutionality of the prayers.
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