Montgomery County Precinct 1 Justice of the Peace Wayne Mack can continue to start his court proceeding with prayer, the 5th U.S. Circuit Court of Appeals has ruled, deciding that the judge’s actions were not government-sponsored prayer or coercive. The 2-1 decision by a panel of the appellate court, issued on Thursday, comes months after the court heard oral arguments in the case filed by the nonprofit Freedom from Religion Foundation. The agency filed on behalf of lawyers who practiced in Mack’s court, saying the prayer violates constitutional protections.
The majority ruling concluded the plaintiffs did not prove any harm from Mack’s prayer practice. The judge “has shown there is no ‘genuine dispute as to any material fact’ concerning whether his prayer practice is consistent with the tradition of public, government-sponsored prayer. The 5th Circuit rightly concluded that Judge Mack’s brief ceremony respects a rich historical tradition of opening judicial proceedings with an invocation,” said Bradley Hubbard, the Gibson, Dunn & Crutcher attorney who argued the case in April.
Annie Laurie Gaylor, co-president of the nonprofit, Freedom from Religion Foundation, called the decision “disturbing. A courtroom is not a church and a judge’s bench should not be a pulpit,” Gaylor said. “It is a dishonest decision claiming a tradition of courtroom prayer and denying it is coercive.”
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The Freedom From Religion Foundation and a lawyer sued in 2019 over Mack’s practice of starting each court day with a few minutes for prayers delivered by faith leaders who participate in a volunteer chaplaincy program that he launched after being elected as a judge in Montgomery County.
Lawyers and litigants can attend but are told they do not have to, and afterwards a bailiff tells anyone in the lobby that court is about to start. But the plaintiffs argued litigants and lawyers risk upsetting Mack by not participating.
U.S. District Judge Kenneth Hoyt in Houston last year agreed the courtroom prayers violated the prohibition in the First Amendment of the U.S. Constitution on the government “establishing” a religion.
Smith (Reagan) and Engelhardt (GW Bush) were in the majority, Jolly dissented. (Reagan)
There are 16 Article lll judges in the 5th U.S. Circuit Court of Appeals. 12 nominated by Rs and 4 by Ds.
