November 2022 Church & State Magazine

U.S. Appeals Court Allows Texas Judge To Open Sessions With Prayer

  U.S. Appeals Court Allows Texas Judge To Open Sessions With Prayer

A local judge in Texas who opens courtroom sessions with Christian prayer may continue to do so, a federal appeals court has ruled.

The 5th U.S. Circuit Court of Appeals ruled 2-1 Sept. 29 in favor of Montgomery County Justice of the Peace Wayne Mack, who for years has been opening sessions with prayers and Bible readings. Under what he called a “chaplaincy program,” Mack introduces religious leaders who then lead prayers and sometimes offer a short sermon.

Mack insisted that no one had to take part in the ceremony and that people were free to leave the room, but some attorneys said they feared that if they walked out during the prayers, it would lead Mack to disfavor their clients.

The Freedom From Religion Foundation sued Mack over the religious ceremonies and won a favorable ruling from a federal court in May of 2021. But the decision by the 5th Circuit overturns that decision.

The majority held that Mack’s prayers were not coercive.

“The plaintiffs cry coercion because Texas Justice of the Peace Wayne Mack opens his court with a ceremony that includes a prayer,” the judges wrote. “But Mack also takes great pains to convince attendees that they need not watch the ceremony – and that doing so will not affect their cases. Some attendees say they feel subjective pressure anyway. Yet the plaintiffs have no evidence suggesting that ‘coercion is a real and substantial likelihood.’”

Dissenting Judge E. Grady Jolly charged that the majority was being naïve in accepting Mack’s claim that he would show no bias toward those who declined to take part in the prayers.

“When litigants enter Judge Mack’s courtroom, they must decide whether they will stay for the prayer ceremony or exit the courtroom for its duration,” Jolly wrote. “If they stay, thus aligning with Judge Mack, the courtroom is closed and the door is locked, leaving only the righteous with the judge. The litigants cannot sit back and observe: they are required to stand for the prayer ceremony. And when the actual prayer begins, the testimony indicates that Judge Mack scans the courtroom, leaving the impression upon litigants that he is indeed judging audience participation despite their supposed ability to abstain without consequence.”

Jolly added, “It is reasonable to believe that nonparticipation will draw his ire: Judge Mack, a Pentecostal minister who has affirmatively stated that he seeks to spread the gospel of Jesus Christ, made a campaign promise to establish prayer in his courtroom. He has previously criticized opponents of his prayer ceremony and has acted hostile following a litigant’s noncooperation in the prayer. … For the majority to find that there is no evidence of coercion, suggests, in my opinion, willful blindness and indisputable error.”

Americans United filed a brief on behalf of scholars in the case, Freedom From Religion Foundation v. Mack, arguing that Mack’s in-courtroom sponsorship of religion is unconstitutional.


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