Freedom from religion foundation, Inc | Subscribe
Published by the Freedom From Religion Foundation, Inc.

Court: Judge can pray while case pending

Judge Mack

An appeals court has disappointingly issued a stay order in a case that the Freedom From Religion Foundation recently won over a praying Texas judge.

A panel of judges from the 5th U.S. Circuit Court of Appeals on July 9 ruled that a Texas judge could continue his courtroom prayers while his appeal is pending. FFRF and its attorney plaintiff “John Roe” have so far prevailed in the challenge of Judge Wayne Mack’s practice of hosting chaplains to deliver prayers to open court sessions.

On May 20, U.S. District Court Judge Kenneth Hoyt ruled that the prayers were coercive and violated the Establishment Clause. The constitutionally sound decision had declared: “The court is of the view that the defendant violates the Establishment Clause when, before a captured audience of litigants and their counsel, he presents himself as theopneustically inspired, enabling him to advance, through the chaplaincy program, God’s ‘larger purpose.’ Such a magnanimous goal flies in the face of historical tradition, and makes a mockery of both religion and law.”

However, the stay order freezes that decision. Judge Andrew Oldham, a President Trump appointee, authored the July 9 opinion, which states, “The judge has made a strong showing that the district court erred.” The three-judge panel issued a stay of the district court’s order and found that Mack was likely to prevail on the merits.

“We are disheartened that people who have cases before Mack will continue to have to participate in unconstitutional prayers while this case proceeds,” says FFRF Co-President Annie Laurie Gaylor. “The First Amendment must protect individuals from judges who wield their power to coerce participation in religious exercises.”

Mack, a formerly ordained minister who attended Jackson College of Ministries, made the unprecedented decision to solicit chaplains to open his court sessions with prayer, a practice not replicated by any other court in the country. Attendees have reported Mack surveying the courtroom during prayers, causing concern that their cases would be affected if they did not participate. Mack’s bailiff announced the prayers, stating that anyone could leave during the prayer, but then locked the courtroom doors. Mack entered, talked about his chaplaincy program, introduced a chaplain, and gave the name and location of the chaplain’s church. While everyone in the courtroom remained standing, the chaplain, who was almost always Christian, delivered a prayer, with no guidelines regarding permissible content.

The stay decision is not a final ruling on the case. Mack and FFRF will file briefs with the 5th Circuit on the appeal later this year.

FFRF and Roe are being represented by FFRF Associate Counsel Sam Grover, with FFRF Associate Counsel Elizabeth Cavell and Attorney Ayesha Khan of Washington, D.C., serving as co-counsel.