Judge Wayne Mack, a justice of the peace in Montgomery County, Texas, has a longstanding practice of beginning each court session with a chaplain-led prayer. During each court session, the bailiff directs all in the courtroom to rise as Judge Mack enters. Judge Mack then describes his chaplaincy program and introduces the chaplain for that session. The chaplain—almost always a Christian—then delivers a prayer. Attendees reported that, although the bailiff would announce that they could leave during the prayer, the bailiff locked the courtroom doors. They also noted that Judge Mack could be seen surveying the room during the prayers, leading them to fear that he would treat their cases differently if they did not participate.
The Freedom From Religion Foundation filed a lawsuit in a federal district court alleging that Judge Mack’s practice violates the separation of religion and government guaranteed by the First Amendment’s Establishment Clause. In May 2021, the district court decided the case in favor of FFRF, ruling that Judge Mack had violated the Establishment Clause and impermissibly coerced court attendees into religious practice.
Judge Mack appealed that ruling to the U.S. Court of Appeals for the Fifth Circuit. There, Americans United filed an amicus brief in support of FFRF on behalf of multiple scholars of religion and history, arguing that Judge Mack’s practice of daily, government-sponsored prayers in his courtroom indeed violates the Establishment Clause. As we explained in the brief, historical sources make clear that a principal purpose of the Establishment Clause was to prohibit government from coercing people—whether overtly or through more subtle means—in religious matters. And, contrary to what Judge Mack argued, there is no longstanding historical tradition of courtroom prayer in the United States.
On September 29, 2022, a panel of the Fifth Circuit ruled by a 2-1 vote that Judge Mack’s prayer practice is constitutional, concluding that the plaintiffs did not present sufficient evidence that the prayers were coercive. In dissent, Judge E. Grady Jolly criticized the majority for their “willful blindness and indisputable error” in overlooking abundant evidence of coercion that the plaintiffs had presented. On December 2, 2022, the Fifth Circuit rejected by 12–3 vote a request by a Fifth Circuit judge that the entire court rehear the case. In dissent, Judge Stephen Higginson wrote that the panel majority’s decision “has no basis in tradition, runs counter to settled law, and endangers our independent judiciary.”