- The Washington Times - Monday, July 12, 2021

A justice of the peace in Texas can continue opening sessions in his courtroom with prayers from volunteer chaplains while a lawsuit by an atheist group proceeds in federal court, the 5th Circuit U.S. Court of Appeals has ordered.

Judge Wayne Mack, who is both a justice of the peace and the county coroner in Montgomery County, regularly recognizes a volunteer chaplain before proceedings in his courtroom. Conroe, the county seat, is about 40 miles north of Houston.

The chaplains — Protestant, Catholic, Buddhist, Hindu, Jewish and Islamic — offer “encouraging words” or a prayer.

A bailiff then leads the courtroom in the Pledge of Allegiance, documents indicate. Participation in both elements is voluntary, and those in the courtroom are told by the bailiff they can leave to be called back when the court is in session.

Before Judge Mack enters, court documents state the bailiff explains, “You are NOT required to be present during the opening ceremonies, and if you like, you may step out of the [courtroom] before the Judge comes in. Your participation will have no effect on your business today or the decisions of this court.”

Despite those safeguards, the Wisconsin-based Freedom from Religion Foundation, or FFRF, filed a complaint in 2014 against Judge Mack. The group sued the judge in his personal capacity.

In May, U.S. District Judge Kenneth M. Hoyt, a Reagan appointee who now holds senior status, ruled the ceremony “makes a mockery of both religion and law.”

In the appeals court’s stay of the decision, 5th Circuit Judge Andrew Oldham, a Trump appointee writing for the three-judge panel, stated Judge Mack “has made a strong showing that the district court erred” in siding with Freedom from Religion Foundation.

The decision noted the plaintiffs’ arguments were not likely to succeed at trial. “As to FFRF’s individual-capacity claim, that too is likely to fail. 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. If anything, Judge Mack‘s chaplaincy program raises fewer questions under the Establishment Clause because it uses zero tax dollars and operates on a volunteer basis.”

The stay also noted a rich legal history of Supreme Court sessions opening with a religious invocation — “God save this Honorable Court” — and suggested such a precedent would support Judge Mack‘s claims. The order also noted Supreme Court decisions upholding legislative chaplaincies in 1983’s Marsh v. Chambers and again in Town of Greece v. Galloway in 2014, adding, “It’s true that Marsh and Town of Greece involved a legislature’s chaplains, not a justice of the peace’s chaplains. But it’s unclear why that matters, given the abundant history and tradition of courtroom prayer.”

“I am so very grateful that we have our chaplaincy program in place to assist with helping families in our county through terrible tragedies and to provide a moment of perspective as our court begins proceedings. I am pleased that this program can continue while we are presenting our case to the Fifth Circuit,” the judge said.

Judge Mack is represented by First Liberty Institute, a public-interest nonprofit based near Dallas. “We agree with the Fifth Circuit’s conclusion that prohibiting the prayers was wrong. It’s time for the Freedom from Religion Foundation and the State Commission on Judicial Conduct to end their harassment of Judge Mack,” Justin Butterfield, the group’s deputy general counsel said in a statement.

In a statement, FFRF co-president Annie Laurie Gaylor lamented the appeals court’s ruling: “We are disheartened that people who have cases before Mack will continue to have to participate in unconstitutional prayers while this case proceeds. The First Amendment must protect individuals from judges who wield their power to coerce participation in religious exercises.”

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