Published by the Freedom From Religion Foundation, Inc. FFRF.org

FFRF refiles case against prayerful justice in Texas

Vol. 36 No. 05 June/July 2019
Wayne Mack                                                                                                                                                                                                                                                                                                                               

The Freedom From Religion Foundation and a co-plaintiff refiled a case on May 29 against a Texas justice of the peace who regularly foists prayer upon his courtroom attendees.

Last September, a federal court judge dismissed a lawsuit by FFRF and three local plaintiffs filed in March 2017 challenging Montgomery County Judge Wayne Mack’s religious rituals at the beginning of court sessions. U.S. District Court Judge Ewing Werlein Jr., for the Southern District of Texas in Houston, dismissed the case because FFRF had named  as the main defendant Montgomery County, which claimed it had no control over Mack’s courtroom practices. The case was dismissed without prejudice, meaning FFRF was free to refile the case with new defendants.

With the support of compelling evidence, FFRF is doing that.

Mack, a graduate of the Jackson College of Ministries, where he majored in theology, ran for justice of the peace in 2014 on a platform of instituting religious values within the office. Now, as a judge, he has made the unprecedented decision to solicit chaplains to open each of his court sessions with prayer, a practice not replicated by any other court in the country.

Shortly after assuming his post on May 1, 2014, Mack instituted a Justice Court Chaplaincy Program that would eventually serve as the primary source of the chaplains who deliver courtroom prayers. In the beginning, Mack made clear that only Christian chaplains need apply. Mack’s original chaplain training manual described the program as a “ministry” and included an image of a badge, issued by Mack to each chaplain who completed a training session, that featured a large Christian cross in the middle. Chaplains would wear these badges while delivering prayers in Mack’s court. Unsurprisingly, the overwhelming majority of the chaplains in the program, and the prayers they deliver, have reflected Mack’s personal religious beliefs.

By spring 2015, after receiving scrutiny from FFRF and a formal complaint to the State Commission on Judicial Conduct, Mack began revising

his courtroom-prayer practice. Now, after attorneys have indicated their presence in the courtroom and after the docket has been called, but before Mack has entered, the bailiff or court clerk gives a brief introductory statement describing the prayer practice. That announcement is supposed to include a statement that those opposed to prayer may leave the courtroom without affecting the outcome of their cases, although this has been inconsistently incorporated. Mack enters the courtroom, and after his introduction, the chaplain leads a prayer. The doors are magnetically locked. To exit, a person must push a button and re-entry can only be granted by someone already inside.

FFRF co-plaintiff John Roe has been present in Mack’s courtroom on many occasions in recent years, and, on each of these occasions, he was exposed to a courtroom prayer led by a Christian chaplain. In mid-June 2017, prior to the start of court, Roe was in the courthouse but not yet in the courtroom. The clerk of court entered the room and instructed Roe and the litigant that they “need[ed]” to enter the courtroom to participate in the prayer. This wasn’t framed as a request, but as a demand. Roe complied because he believes that publicly registering his objection to the courtroom-prayer practice would jeopardize his client and case.

Roe said he regularly declines business in order to avoid appearing in Mack’s courtroom. On some matters, Roe elects to bring claims in the district court instead of Mack’s court, despite the higher filing fees, higher service fees and the generally slower docket. These decisions are not choices that any attorney or private litigant should have to make.

Mack’s courtroom prayer practice places the state’s imprimatur on religion, in general, and Christianity, in particular, in violation of the Establishment Clause, FFRF contends. Due to his power as a justice of the peace, Mack has coerced Roe and others to participate in his religious practice. FFRF desires a judgment declaring that Mack’s courtroom prayer practice violates the Establishment Clause and a judgment awarding plaintiffs their reasonable attorneys’ fees and costs.

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.