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Texas Judge Who Allegedly ‘Scans’ the ‘Piety’ of Lawyers and Litigants During Courtroom Prayer Ceremonies Wins Fifth Circuit Victory

A video screengrab shows Judge Wayne Mack.

Judge Wayne Mack. (Image via the Lone Star Cowboy Church/YouTube screengrab.)

In a split decision, the Fifth Circuit Court of Appeals on Thursday ruled in favor of a Texas justice of the peace who “opens his court with a ceremony that includes a prayer.”

The case, styled as Freedom From Religion Foundation, Inc. v. Mack, held that Texas Justice of the Peace Wayne Mack did not violate the the U.S. Constitution by carrying out the ceremonies in question — mostly because the appellate panel found that the prayer sessions didn’t involve “measurable coercion.”

As a justice of the peace, Mack’s jurisdiction involves “criminal offenses that are punishable by fines and civil controversies of $20,000 or less,” the Firth Circuit noted.

U.S. Circuit Judge Jerry E. Smith (a Ronald Reagan appointee) delivered the opinion of the court; judge Kurt D. Engelhardt (a Donald Trump appointee) and senior judge E. Grady Jolly (another Reagan appointee) were on the panel.  Jolly concurred in part and dissented in part with the court’s holding.

The intermediate appellate court’s opinion contains several starkly different versions of what occurs in Mack’s courtroom.

Smith, writing for the majority, described one version of the courtroom in question:

When a visitor arrives at Mack’s court, he sees a message inscribed on the door and on a nearby television screen: “It is the tradition of this court to have a brief opening ceremony that includes a brief invocation by one of our volunteer chaplains . . . . You are not required to be present or participate. The bailiff will notify the lobby when court is in session.” If the visitor arrives before court has opened, the door will be open and monitored by a bailiff. As he walks into the room, a litigant must check in with the court clerk.

The courtroom door may be closed after the court’s opening time. A bailiff introduces the court’s opening ceremony. So if only one bailiff is working, there is no one to watch the door during his explanation. On such days, the door is magnetically locked while the bailiff speaks. It cannot be opened from the outside. It can be opened from the inside by pressing a small, green button, which visitors often overlook. So visitors often draw attention to themselves when they wish to leave because a member of the court staff must help them find the button. But according to Mack, the court has been able to hire more bailiffs recently, which means the courtroom door is “never closed” during the opening ceremony.

According to the opinion, a bailiff then reads this script:

[I]t is the tradition of the U.S. Supreme Court, Texas Supreme Court[,] and this Justice Court to have a brief opening ceremony that includes [an] invocation by one of our volunteer chaplains . . . . You are NOT required to be present during the opening ceremonies, and if you like, you may step out of the [courtroom] before the Judge comes in. Your participation will have no effect on your business . . . or the decisions of this court.

So . . . before court begins[,] please take this opportunity to use the facilities, make a phone call, or not to participate in the opening ceremonies. You may exit the [courtroom] at this time.

A prayer ceremony follows.  Mack thanks the chaplains; the chaplains pray or give “encouraging words,” and then the chaplains thank Mack.  Mack claims he faces the flags behind him during the service.  The plaintiffs claim Mack “also keeps his eyes open and scans the audience as if probing attendees’ piety.”

The plaintiffs also claimed Mack could also find out who did — and did not — attend the ceremony in one other fashion.

“If a litigant enters the courtroom for the first time after the ceremony, he will not have checked in, so the clerk may have placed his files in a separate pile of cases to be called last,” the court wrote.  “That later call could distinguish those litigants. Mack also might consult the clerk’s check-in list to see who arrived last. But Mack says he’s never done that.”

A lawyer who practices before Mack brought the case under the pseudonym John Roe.  The Freedom From Religion Foundation jumped into the case as well as an institutional plaintiff.

The opinion explains Roe’s complaints:

Roe is “religiously unaffiliated and objects to a government official telling him when or how to pray.” So Mack’s prayer ceremonies “violate[ ] his sincerely held beliefs.” But when he attended Mack’s court, he “felt compelled to remain in the courtroom during the prayers.”

Once, though, Roe was not in the gallery at the beginning of the ceremony. He says the court’s clerk found him and told him he “needed” to participate in the ceremony. (Alteration adopted.) Roe complied to avoid “bias[ing]” Mack against his clients. But he admits he was “technically in the courtroom” when the clerk spoke to him; he was negotiating with an opponent in a jury room. So Roe hadn’t followed the instructions to “step out” of the courtroom and wait in the “lobby” if he didn’t wish to witness the prayer. He otherwise has never tried to leave the courtroom before the prayer.

Roe thinks it would be “crazy to leave” Mack’s courtroom before the ceremony. He says his clients don’t want him to “make a scene [or] be an activist.” They want effective representation, which Roe thinks requires participation because the prayer ceremony is “baked into every aspect” of Mack’s court. He infers that the ceremony is very important to Mack and that not participating risks Mack’s ire. But Roe admits that he can’t identify specific instances of bias against him, his clients, or anyone else.

Roe thereafter refused to practice in Mack’s court and stopped taking clients in Montgomery County, Texas, “because of Judge Mack,” the opinion noted.

The court responded, in part, as follows:

The plaintiffs cry coercion because Texas Justice of the Peace Wayne Mack opens his court with a ceremony that includes a prayer. 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.”

“Want of evidence showing coercion dooms their case,” Smith continued as to the plaintiffs — thus concluding “that Mack’s practice is noncoercive.”

The court also noted that the “historical record” contains many instances of in-court prayer.  That was relevant, the court said, because “widespread practice around the Founding helps reveal an amendment’s original public meaning.”

That language adopted the holding of Kennedy v. Bremerton School District, the 2022 U.S. Supreme Court case that held in favor of a football coach who wished to pray on the field after every game.

In this case, because “it was common for Founding-era Justices to preside over court-term-opening ceremonies at which chaplains delivered prayers,” the ceremonies in this case could continue, the Fifth Circuit ruled.

The court did, however, close with the following coda — perhaps as a warning; perhaps as a roadmap for others:

To maintain a lawful prayer ceremony, Mack must ensure that (1) he has a policy of denominational nondiscrimination and that (2) anyone may choose not to participate and suffer no consequences. Mack has shown that the plaintiffs fail materially to dispute those elements.

Judge Jolly’s partial dissent explains the situation in more stark terms and chides the majority for failing to recognize it.  From the dissent at length:

I invite the majority to step back and absorb the following picture painted by Plaintiffs’ evidence. 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. 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.

If a litigant who has chosen to stay in the courtroom does not participate, they risk upsetting Judge Mack, the decider of their cases, immediately before he hears their cases. 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. (Citation to analogous case law omitted.) The testimony demonstrates that litigants recognize this risk and choose not to protest because of it.

If, alternatively, the litigant leaves before the prayer starts, thus segregating themselves from Judge Mack’s prayer ceremony, they are locked out of the room, and can only re-enter after Judge Mack has taken the bench. The testimony indicates that in this circumstance, the judge will particularly notice their absence. Thus, although a litigant can avoid the actual prayer, none can avoid signaling their absence to the judge.

Circuit Judge Jolly cited an email Mack once sent to his supporters during a state judicial conduct probe. In that email, Mack called his opponents “local haters” who were “backed by bureaucrats in Austin and reinforced by well funded national organizations who exist for the purpose of removing our basic religious freedoms.”
He railed against the “[a]theists” who brought the state complaint and said the Judicial Conduct Commission was staffed by “sympathetic bureaucrats without authority.” He also complained of “the liberal bias of a few” in that message, according to the dissent.

Judge Jolly said the lower district court’s summary judgment ruling against Mack’s favor should have been reversed merely because there were “factual disputes that could be material in evaluating the religious practices of Judge Mack in his courtroom.”  He would not have entered summary judgment in favor of Mack — or perhaps anyone else — unless and until those factual issues were resolved in the power venue — the trial court.

It is worth noting that Smith’s majority spends considerable time outlining Mack’s background:

Before Mack was elected a Justice of the Peace, he was a Pentecostal minister for ten years. He also worked for Montgomery County, including as a volunteer coroner. As a coroner, Mack witnessed a young woman’s death from a tragic accident. Her family tried and failed to get a chaplain to the scene in time to perform religious rites.

Mack resolved to improve access to chaplaincy services in Montgomery County. When he ran for the justiceship, he campaigned on creating a chaplaincy program. He also promised to open his courts with prayer. When he was elected, he implemented both policies.

[ . . . ]

Mack has described the JCC Program in overtly religious terms. For example, he once said a volunteer chaplain’s role was to “be a representative of God bearing witness to His hope, forgiving and redeeming power.” But he says his objective is to ensure that when local families request help with sudden tragedies, the JCC Program has a representative from “every mosque, every temple, every synagogue, every church you can imagine” to respond.

In a July 2022 sermon posted on YouTube by the Lone Star Cowboy Church, Mack stressed what he believed were the Christian roots of America’s founding documents. However, that address was not discussed in the opinion.

“I believe in an America that every place of worship should be a triage center for everything broken in America, Amen?” Mack asked rhetorically during that sermon. “I believe that.”

The full Fifth Circuit opinion is below:

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.