January 2022 Church & State - January 2022

Legal Scholars Outline Problems With Court-Sponsored Prayer In Brief To Appeals Court

  Legal Scholars Outline Problems With Court-Sponsored Prayer In Brief To Appeals Court

A distinguished group of historians and legal scholars has advised a federal appeals court not to allow a state judge in Texas to open his sessions with a ritualized ceremony featuring prayers by guest chaplains.

Judge Wayne Mack, a justice of the peace in Montgomery County, has been sponsoring the prayer practice since 2014. During the ritual, Mack’s bailiff announces the prayer and tells people in the courtroom that they may leave for its duration. The courtroom doors are then often closed. Mack then enters, talks about the chaplaincy program he instituted, introduces the chaplain and thanks the chaplain for their service to the program. The chaplain then delivers the prayer. In recent years, about 90 percent of the prayers have been Christian.

Together with the Freedom From Religion Foundation, a lawyer who practices in the county challenged the prayer ritual. Known as “John Roe” in court papers, the attorney argues that while Mack claims people have the right to leave during the prayer, no lawyer would ever do that, fearing it might prejudice the judge against his or her client.

A federal court ruled last year that the official prayers are unconstitutional. The case is now on appeal to the 5th U.S. Circuit Court of Appeals.

In their brief in the Freedom From Religion Foundation v. Mack case, the legal scholars and historians point out that there is no tradition of official courtroom prayers in the United States and argue that such practices violate the Establishment Clause, the portion of the First Amendment that bars laws “respecting an establishment of religion.”

“Proper historical analysis reveals that there was no long, unbroken, or established history of courtroom prayer in the United States,” the brief says. “Instead, it shows that courtroom prayer is not consistent with the purpose of the Establishment Clause, would not have been supported by the Founders whose ideas the Establishment Clause reflects, and was rare around the time of the ratification of the First Amendment.”

The brief traces the history of the development of religious freedom in America, citing the views of key founders such as James Madison and Thomas Jefferson and noting that the Establishment Clause was intended in part to prevent governmental religious coercion.

“Judge Mack’s prayer practice produces the very evils of governmental religious coercion and entwinement against which the Establishment Clause was intended to guard,” argues the brief.

The brief also argues that courtroom proceedings are unique because they deal with people facing adjudication in a trial,  and it asserts that government must ensure that the rights of people on trial are protected.

“Yet here Judge Mack effectively pressures a captive audience of citizens to participate in religious worship before he decides their cases or, in the case of a jury trial, exercises substantial control over the proceedings,” observes the brief. “That Judge Mack nominally allows attendees to leave the courtroom before the prayer commences does not render the practice noncoercive – attorneys and litigants are loath to walk out because they know that Judge Mack will see them when they reenter and they fear that he will view them with disfavor as a result. Moreover, on at least one occasion, the court clerk summoned an attorney and a litigant into the courtroom for the prayer. And Judge Mack is plainly sponsoring religious activity and enmeshing it with fundamental operations of government.”

The brief concludes, “The Establishment Clause was intended to shield individuals from religious coercion – both direct and implicit – and to prevent government from becoming involved with religion, so that both religion and government could flourish. Judge Mack’s prayer practice violates these fundamental principles. And he has not come close to demonstrating a continuous practice throughout the history of this country of daily government-sponsored courtroom prayer. The Court should affirm the district court’s judgment.”

The following legal scholars and historians signed the brief: Paul Fink­elman, Ph.D., chancellor and dis­tinguished professor of history at Gratz College; John A. Ragosta, Ph.D., J.D., fellow, Virginia Humanities; Omar H. Ali, professor of African American and African diaspora studies and history, University of North Carolina at Greensboro; Chris Beneke, professor of history, Bentley University; Alan Brownstein, professor of law emeritus, University of California-Davis School of Law; Steven K. Green, J.D., Ph.D., Fred H. Paulus professor of law and director, Center for Religion, Law and Dem­ocracy, Willamette University; Ira Katz­nelson, Ruggles professor of political science and history, Columbia University; Franklin T. Lambert, professor emeritus of history, Purdue University; David V. Mason, Ph.D., associate professor, Rhodes College; Peter S. Onuf, Thomas Jefferson Foundation professor emeritus, University of Virginia; Frank S. Ravitch, professor of law and Walter H. Stowers chair in law and religion, Michigan State University College of Law; Richard C. Schragger, Perre Bowen professor, Martha Lubin Karsh and Bruce A. Karsh bicentennial professor of law, University of Virginia School of Law; and Laurence H. Winer, Ph.D., J.D., professor emeritus of law, Sandra Day O’Connor College of Law, Arizona State University.

Alex J. Luchenitser, Americans Uni­­ted associate vice president and associate legal director, oversaw the preparation of the brief and filed it on behalf of the scholars.

Congress needs to hear from you!

Urge your legislators to co-sponsor the Do No Harm Act today.

The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

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