FREEDOM FROM RELIGION foundation

PO. BOX 750 MADISON. WI 53701 (608) 256?8900 

 

Apri121,2016

The Honorable Ken Paxton
Texas Attorney General
PO. Box 12548

Austin, Texas 7871 1-2548

Dear Attorney General Paxton:

I am writing on behalf of the Freedom From Religion Foundation regarding the
constitutionality of the Justice Court Chaplaincy Program and courtroom prayer practice of the
Honorable Judge Wayne L. Mack. FRF is a national nonpro?t organization with over 23,500
members, including more than 950 members in the state of Texas. Our purpose is to protect the
constitutional separation between state and church.

FFRF first received a complaint about Judge Mack?s courtroom prayer practice from a
citizen who was forced to appear before Judge Mack for a civil case. On October 10, 2014, FFRF
contacted the Texas State Commission on Judicial Conduct to complain about Judge Mack?s
practice of opening court sessions with prayer. Shortly thereafter, a second complainant, an
attorney who was obligated to appear before Judge Mack on a number of cases, contacted FFRF
to object to the courtroom prayer practice. Both complainants consider the courtroom prayers to
be an endorsement of Christianity. Both complainants felt coerced to participate in the prayers
and both did in fact participate, despite their personal objections, out of fear that nonparticipation
would prejudice the judge against them and affect their social or professional standing.

It is our sincere hope that the Office of the Attorney General will issue an objective opinion
on the current state of the law, despite its recent hiring of two attorneys from First Liberty to the
positions of First Assistant Attorney General and Chief of Staff. First Liberty, of course,
defended Judge Mack?s courtroom prayer practice before the State Commission on Judicial
Conduct. The con?ict of interest here should be apparent. Government of?cials and Texas
citizens should be able to rely on Attorney General legal opinions. It would be a disservice to the
public for the Attorney General to issue opinions that merely re?ect the desires and biases of
those who serve in that of?ce. To assist the of?ce in reaching an objective decision, FFRF
submits the brief below.

We write in opposition to the continuation of Judge Mack?s unconstitutional courtroom
prayer practice, which is unsupported by our nation?s history and runs counter to the
constitutional principles on which this country was founded. These courtroom prayers are a
divisive religious endorsement and a coercive practice that forces citizens to Violate their right of
conscience in order to attend to secular matters before Judge Mack.

 

Dan Barker and Annie Laurie Gaylor, Co?Presz'dmts

The facts surrounding Judge Mack?s courtroom prayer practice are adequately summarized in
the State Commission on Judicial Conduct?s February 17 brief and will not be repeated here.
Instead, we urge the Of?ce of the Attorney General to ?rst consider the following hypothetical:

You are a party in a case going to trial; let?s say you have ?led suit against the
government for violating one of your legal rights. The judge bangs his gavel to
call the court to order, asks a minister to come to the front of the room, and
instructs the 10 or so individuals present to rise for an opening prayer. The
clergyman faces those in attendance and says: ?Lord, God of all creation, . . . We
acknowledge the saving sacri?ce of Jesus Christ on the cross. We draw strength
. . . from his resurrection at Easter. Jesus Christ, who took away the sins of the
world, destroyed our death, through his dying and in his rising, he has restored
our life. Blessed are you, who has raised up the Lord Jesus, you who will raise us,
in our turn, and put us by His side . . . . Amen.? The judge then asks your lawyer
to begin the trial.

Judge Mack?s prayer practice closely resembles the above hypothetical, which speci?cally
concerns courtroom prayer and is taken from Justice Kagan?s dissenting opinion in Town of
Greece v. Galloway, 134 1811, 1842 (2014) (Kagan, J., dissenting). While the Lieutenant
Governor?s of?ce characterizes Judge Mack?s courtroom prayers as ?almost identical? to the
legislative prayer practice found permissible in Greece, this argument is unpersuasive, given the
explicitly contradictory language in the opinion. Justice Alito, concurring in the Greece decision,
joined by Justice Scalia, speci?cally addressed the above hypothetical and stated that he was
?concerned that at least some readers will take these hypotheticals as a warning that this is where
today?s decision leads?to a country in which religious minorities are denied the equal bene?ts
of citizenship.? Id. at 1834 (Alito, ., concurring). He continued, ?Nothing could be further from
the truth.? Id. In Alito?s mind, the legislative prayer practice upheld in Greece does not extend to
courtroom prayer.

The four dissenting justices in the Greece decision similarly would not hold that Judge
Mack?s courtroom prayer practice passes constitutional muster. Justice Kagan?s opinion makes
clear that the analysis in Greece would be different if the Supreme Court were considering
courtroom, instead of legislative, prayer. Referring to the above hypothetical, Justice Kagan
writes, would hold that the government of?cials responsible for the above practices?that is,
for prayer repeatedly invoking a single religion?s beliefs in these settings?crossed a
constitutional line. I have every con?dence that the Court would agree.? Id. at 1843 (Kagan, .,
dissenting).

We encourage the Of?ce of the Attorney General to adopt the opinion of the six Supreme
Court justices, ?ve of whom remain on the Court today, who addressed courtroom prayer in
Greece and indicated it does not fall within the narrow legislative prayer exception to the
Establishment Clause. For the follow reasons, Judge Mack?s courtroom prayer practice violates
the Establishment Clause of the First Amendment.

A. Judge Mack?s courtroom prayer practice is historically unsupported and
factually distinct from the legislative prayer upheld in Marsh and Greece.

In Marsh v. Chambers, the US. Supreme Court carved out a narrow exception to traditional
Establishment Clause analysis in holding that invocations offered to open legislative sessions are
constitutional because legislative prayer is historically unique: ?In light of the unambiguous and
unbroken history of more than 200 years, there can be no doubt that the practice of opening
legislative sessions with prayer has become part of the fabric of our society.? 463 US. 783, 792
(1983); see also id. at 796 (Brennan, ., dissenting) (?The Court makes no pretense of subjecting
. . . legislative prayer to any of the formal ?tests? that have traditionally structured our inquiry
under the Establishment Clause?). In 2014, in Town of Greece v. Galloway, the Court reaf?rmed
its commitment to Marsh and the special exception legislative prayer receives from the
Establishment Clause due to its unique history. 134 at 1819 (noting that the Court?s inquiry
is to ?determine whether the prayer practice in the town of Greece ?ts within the tradition long
followed in Congress and the state legislatures? upheld in Marsh).

Judge Mack?s courtroom prayer practice enjoys none of the ?unbroken history of more than
200 years? that insulates the legislative prayer practice from traditional Establishment Clause
analysis. The Lieutenant Governor?s February 16 brief points to similarities in the method used
to select chaplains in an effort to equate Judge Mack?s courtroom prayer practice and the
legislative prayer upheld in Greece. But these similarities are beside the point.

If a public school teacher opened every school day with prayers delivered by guest chaplains
in the exact manner described in Greece, there is no doubt that the practice would violate the
Establishment Clause. Cf Lee v. Weisman, 505 US. 577 (1992) (holding similar prayers at
graduation ceremonies unconstitutional). The practice would not receive the protections afforded
to legislative prayer because even though the method of delivery is the same, the setting?the
public school system?and the audience?school children readily susceptible to coercive
pressure?makes the practice factually distinct from the unbroken ZOO-year tradition of
legislative prayer. To determine if a practice is afforded the legislative prayer exception, ?[t]he
inquiry remains a fact-sensitive one that considers both the setting in which the prayer arises and
the audience to whom it is directed.? Greece, 134 at 1825 (emphasis added).

Judge Mack?s courtroom is a far more coercive setting than a state legislature or local town
council meeting. Citizens are often compelled to appear before Judge Mack under threat of
additional ?nes or the issuance of an arrest warrant for failure to appear. This is in stark contrast
to the members of the public who may choose to attend a legislative session, but is in line with
public school cases that have long recognized the coercive nature of truancy laws. See, e. 
McCollum v. Bd. of Educ, 333 US. 203, 204 (1948) (noting Illinois? compulsory education law
and that ?[p]arents who violate this law commit a misdemeanor punishable by 

Unlike in the case of legislative prayer where ?[t]he principal audience for these invocations
is not, indeed, the public but lawmakers themselves,? Greece, 134 at 1825, the intended
audience for Judge Mack?s prayers is the attorneys and other members of the public assembled in
the courtroom. This is clear from the practice itself, which includes the bailiff reading a prepared
statement to those assembled in the courtroom before Judge Mack has even entered. Indeed, it

would be odd to claim that the intended audience is Judge Mack, rather than those assembled in
the courtroom. The alleged purpose of the prayers is to ?solemnize the court proceedings.?
Unlike a state legislative session, where only lawmakers are typically permitted to speak, or a
local board meeting, where public comment may be invited but is not essential, court
proceedings necessarily involve private parties and their attorneys. If Judge Mack were the sole
intended audience, he could, of course, pray by himself, or engage with his chosen chaplain in
the privacy of his chambers, rather than making a public display of it.

B. Judge Mack?s courtroom prayer practice is legally distinct from the ceremonial
deism that opens court sessions before the Texas and US. Supreme Courts.

The Lieutenant Governor?s February 16 brief seeks refuge in tradition and history by
claiming that Judge Mack?s prayer practice ?cannot be distinguished? from the announcement,
?God save the [United States] [State of Texas] and this Honorable Court,? which regularly opens
US. and Texas Supreme Court sessions. But the Lieutenant Governor?s of?ce is mistaken to
characterize the US. and Texas Supreme Court?s opening announcements as ?prayers? at all. In
reality, these instances of ?ceremonial deism??brief, historically ubiquitous, non-prayers with
minimal religious content?can and have been distinguished from courtroom prayer, though the
Lieutenant Governor?s of?ce fails to address, or even acknowledge, any of the relevant case law.
The most relevant case, Constangy, is fully addressed in the State Commission on Judicial
Conduct?s February 17 brief and will not be further explored here. See N.C. Civil Liberties Union
Legal Found. v. Constangy, 947 F.2d 1145 (4th Cir. 1991), cert. denied, 112 3027 (1992)
(distinguishing the practice of opening courtroom sessions with prayer from the US. Supreme
Court?s tradition and the legislative prayer tradition, and ruling that courtroom prayer violates the
Establishment Clause).

In Elk Grove Unified Sch. Dist. v. Newdow, Justice O?Connor explained why the Court
permits passing references to religion in limited circumstance:

This category of ?ceremonial deism? most clearly encompasses such things as the
national motto (?In God We Trust?), religious references in traditional patriotic
songs such as The Star?Spangled Banner, and the words with which the Marshal
of this Court opens each of its sessions (?God save the United States and this
honorable Court?).

542 US. 1, 37 (2004) (O?Connor, ., concurring). According to Justice O?Connor, government
expression that falls within this limited category does not offend the Establishment Clause due to
its ?history, character, and context.? Id. In contrast, the prayers in Judge Mack?s courtroom are
historically unsupported, quintessentially religious in character, and given in a coercive context
where a government actor is exercising signi?cant power over the lives of citizens.

Unlike the ceremonial deism practiced by the US. and Texas Supreme Courts, the prayers
given in Judge Mack?s courtroom, in which religious leaders make direct appeals to a
supernatural entity, are the archetype of a religious act. ?[O]nly in the most extraordinary
circumstances could actual worship or prayer be defended as ceremonial deism. We have upheld
only one such prayer against Establishment Clause challenge, and it was supported by an

extremely long and unambiguous history.? Id. at 40 (citing Marsh v. Chambers). Judge Mack?s
courtroom prayers lack any resemblance to ceremonial deism, acts which are ?protected from
Establishment Clause scrutiny chie?y because they have lost through rote repetition any
signi?cant religious content.? v. Donnelly, 465 U.S. 668, 716 (1984) (Brennan, J.,
dissenting).

Judge Mack?s courtroom prayer practice is legally and factually distinct from both the
legislative prayer practice upheld in Marsh and Greece and the tradition of the U.S. and Texas
Supreme Courts, which do not open with a prayer but with a statement that amounts to
ceremonial deism. Therefore, Judge Mack?s courtroom prayer practice must be analyzed under
traditional Establishment Clause tests. The practice fails each of these tests.

C. Judge Mack?s prayer practice violates the Establishment Clause due to its
religious purpose, religious endorsement, and coercive nature.

The Constitution?s Establishment Clause, among other things, ?prohibits government from
appearing to take a position on questions of religious belief or from ?making adherence to a
religion relevant in any way to a person?s standing in the political community.?? Cnty. of
Allegheny v. ACLU, 492 U.S. 573, 594 (1989) (quoting v. Donnelly, 465 U.S. 668, 687
(1984) (O?Connor, J., concurring)). In Lemon v. Kurtzman, the Supreme Court established a
three-part test to determine whether governmental action runs afoul of the Establishment Clause:
a challenged government action is unconstitutional if: (1) it does not have a secular purpose; (2)
its primary effect either advances or inhibits religion; or (3) it excessively entangles government
with religion. 403 U.S. 602, 612?13 (1971); see also, Agostini v. Felton, 521 U.S. 203
(1997); Doe v. Beaumont Indep. Sch. Dist, 240 F.3d 462, 468 (5th Cir. 2001).

The ?Lemon test? has been subjected to much criticism by some members of the Supreme
Court and, as this internal criticism has mounted, a number of cases have rede?ned the ?rst two
prongs under a so-called ?endorsement test? that asks whether the practice under review conveys
a message of endorsement of religion. See, Capitol Square Review Advisory Bd. v.
Pinette, 515 U.S. 753 (1995); Cnly. of Allegheny, 492 U.S. at 626?32 (O?Connor, J., concurring).
Alternatively, a minority of Justices occasionally advocate for scrutinizing government action
under a ?coercion test? derived from the Supreme Court?s decisions in Santa Fe Independent
Sch. Dist. v. Doe, 530 U.S. 290 (2000), and Lee v. Weisman, 505 U.S. 577 (1992). Although it is
not clear where this test ?belongs in relation to the Lemon test,? the test itself ?seeks to
determine whether the state has applied coercive pressure on an individual to support or
participate in religion.? Doe v. Elmbrook Sch. Dist, 687 F.3d 840, 850 (7th Cir. 2012).

Regardless of the test used, Judge Mack?s courtroom prayer practice fails.
i. Judge Mack?s public comments betray his underlying religious purpose.
Courts analyzing the purpose behind a government practice normally give deference to a
government assertion of secular purpose. See Edwards v. Aguillard, 482 U.S. 578, 585 (1987).

However, the court does not have to accept a secular purpose that is ?an apparent sham, or
[where] the secular purpose [is] secondary.? McCreary Cnty. v. Am. Civil Liberties Union, 545

US. 844, 864?65 (2005) have not made the purpose test a pushover for any secular
claim?). Judge Mack?s public comments reveal the underlying religious purpose behind his
courtroom prayer practice.

On October 10, 2014, Judge Mack issued a statement in response to concerns about
his courtroom prayer practice in a letter advertising a prayer breakfast, entitled need your help
to take a stand.? The letter, addressed to ?Pastors People of Faith,? explained that Judge Mack
wanted ?to make a statement . . . that God has a place in all aspects of our lives and public
service . . . This statement is not consistent with Judge Mack?s proffered secular purpose of
using courtroom prayer to solemnize his court proceedings. This statement is a call to arms,
directed to people of faith.

Judge Mack has used his courtroom prayer practice to draw a line in the sand, dividing the
citizens of Montgomery County into Christian insiders who support his Christian cause and non-
Christian outsiders, whom he refers to collectively as ?atheists.? Speaking at his prayer breakfast
on October 23, 2014, Justice Mack stated, ?as the Justice of the Peace, I will bring the Prince of
Peace to work with me every day.? He went on to claim, ?Atheists have fabricated facts to suit
their agendas and even used fabricated and imaginary events to create a complaint to ?le with the
Texas Commission on Judicial Conduct.?2 Judge Mack?s eagerness to cast himself as a Christian
martyr and frame the issue as one of him against ?atheists? betrays his underlying religious

purpose.

ii. Judge Mack?s courtroom prayer practice has the primary effect of
endorsing religion.

Whether reviewed under Lemon?s ?effect? prong or under the separate endorsement test,
Judge Mack?s courtroom prayer practice fails to pass constitutional muster. Judge Mack?s prayer
practice has already had the demonstrable effect of isolating non-Christians who have appeared
in his courtroom by creating the appearance that he, in his capacity as a Montgomery County
Justice of the Peace, is endorsing Christianity. original citizen complainant described the
experience of appearing in Judge Mack?s court like this:

[Judge Mack] announced that all present in the court should remain standing after
rising for his entrance. [After issuing the prayer announcement] he instructed us
to remain standing While he discussed his new program that he was very proud of
in which his court now has 50 Chaplains ?on staff.? . . . He then spent a few
minutes introducing ?today?s visiting pastor,? discussing his credentials,
announcing which Church he was from and where it was located. The pastor then
stood and announced that he was going to read from the Bible. He read a Bible
passage (about 5-8 min) and While he was reading it, I felt that the Judge was
watching for reactions from the courtroom; bowed heads, indifference etc. I
de?nitely felt that our cases were to be affected by our reactions or lack [thereof].

 

1 Judge Wayne L. Mack, letter appearing in Montgomery County Eagle Forum (last visited Apr. 19, 2016),
available at 

2 Kimberly Sutton, Mack?s inaugural breakfast turnout victorious despite courtroom prayer controversy, THE
COURIER OF MONTGOMERY COUNTY (last visited Apr. 19, 2016), available at http:// goo. gl/CvaQI.

Judge Mack?s prayer practice has undermined his appearance of impartiality as a judge.
second complainant, an attorney who regularly appeared before Judge Mack, remarked
that the judge ?was so proud of his ceremonies that it would clearly be prejudicial to anyone who
took exception.? This is a concern from a judicial ethics perspective, but also demonstrates that
the prayer practice creates the impression in reasonable observers that a government
representative endorses the religious statements made by the visiting pastors. Judge Mack has
done nothing to alleviate this impression and has, in fact, exacerbated the appearance of
government endorsement through his subsequent actions?holding a prayer breakfast to defend
his courtroom prayer practice?and statements.

The courtroom atmosphere in which the prayers take place is inherently
coercive.

Though never adopted by the majority on the Supreme Court, the coercion test represents the
lowest bar for the government when analyzing a potential Establishment Clause violation. Judge
Mack?s courtroom prayer practice utterly fails this maximally permissive test, as applied to
citizens, attorneys, and court employees.

The Establishment Clause ?guarantees that government may not coerce anyone to support or
participate in religion or its exercise.? Lee, 505 US. at 587 (quoting 465 US. at 678). In
Lee, the Supreme Court held that a public school district had coerced students into supporting
government-sponsored religion by having clergy lead prayers at graduation ceremonies. Id In
analyzing the coercive nature of this practice, the Court concluded that the school?s ?direct
supervision and control of a high school graduation ceremony places public pressure, as well as
peer pressure, on attending students to stand as a group or, at least, maintain respectful silence . .
. Id. at 5 93. Even though the parties had stipulated that student attendance at graduation was
voluntary, the Court rejected the argument that the voluntary nature of the ceremony diminished
the coercive in?uence on students. Id. at 594?95. For many who appear in Judge Mack?s
courtroom, their presence is not voluntary. Even for those who can leave during the prayers, the
coercive nature of the courtroom effectively compels their attendance.

As described earlier in this brief, citizens are often compelled to appear before Judge Mack
under threat of ?nes or the issuance of an arrest warrant for failure to appear. The entire
machinery of the Montgomery County government compels their appearance in court. And
though they are allegedly invited to step outside the room during the prayers, Judge Mack has
presented them with an untenable dilemma: either risk the court?s ire by leaving the courtroom
during the prayer practice or Violate their right of conscience by remaining.

As for legal counsel, there is substantial professional pressure to stay in a judge?s good
graces. Attorneys risk their very livelihood if they cross a judge. If a judge has instituted and
vigorously defended a particular set of religious practices in his courtroom, common sense and
professional obligations dictate that attorneys remain standing inside the courtroom and
?maintain respectful silence? during the prayers. Id. at 593. FF attorney complainant
summarized the coercive nature of Judge Mack?s prayer practice like this: did not leave the
courtroom because I was there to represent my client, not to make a protest, and I could not in
good conscience put my client?s interests at risk by accepting the Judge?s ?invitation? to leave.?

Court employees, too, have professional duties that require their attendance in the courtroom
during these prayers. The very bailiff who is charged with announcing the supposedly voluntary
nature of the prayers is himself required to remain inside the courtroom. For county employees
working in Judge Mack?s courtroom, not observing the prayers may amount to a ?reable offense.

D. Judge Mack?s ?Justice Court Chaplaincy Program? may itself violate the
Constitution and cannot justify the courtroom prayer practice.

The Lieutenant Govemor?s brief describes Judge Mack?s Justice Court Chaplaincy Program
as a ?religious accommodation? with the secular purpose of ?freeing [Judge Mack] to
concentrate on the death investigation instead of having to divide his time between investigating
the death and managing traumatized persons . . . But this description fails in two regards: I)
the proposed secular purpose does not justify the creation of a Justice Court Chaplaincy
Program, and 2) the very concept of a religious accommodation does not apply to this program.

The State Commission on Judicial Conduct?s March 4 supplemental statement describes
Judge Mack?s Court Chaplaincy Program as an ?unauthorized practice.? This description is
accurate, since ?managing traumatized persons? is not among Judge Mack?s duties as a Justice of
the Peace. The Texas Code of Criminal Procedure, ch. 49, describes the ?Duties Performed By
Justices of The Peace? in great detail and interacting with traumatized persons is not among
them. On its face, therefore, the proposed secular justi?cation for the chaplain program fails. The
chaplains cannot be justi?ed as relieving Judge Mack of a duty with which he is not charged.

The proposed secular justi?cation for the Chaplaincy program also fails because Judge Mack
needs to do more than justify creating a program to manage traumatized persons. He needs to
justify why that program is inherently religious, rather than secular. Secular trauma counselors or
therapists would be quali?ed to perform the duties assigned to Judge Mack?s chaplains and
would be available to manage all traumatized persons on the scene, not just those with a speci?c
religious background. The Lieutenant Governor?s brief attempts to gloss over this question with
a passing reference to ?religious accommodation,? but the very concept of a religious
accommodation does not apply to the circumstances in this case.

Justice Brennan addressed the permissible purpose of a government-run chaplain program in
Schempp, which the Lieutenant Governor?s of?ce cited, but inexplicably failed to analyze on this
fundamental point, made directly before the language quoted in its brief:

[The provision of chaplains may] be sustained on constitutional grounds as
necessary to secure to the members of the Armed Forces and prisoners those
rights of worship guaranteed under the Free Exercise Clause. Since government
has deprived such persons of the opportunity to practice their faith at places of
their choice, the argument runs, government may, in order to avoid infringing the
free exercise guarantees, provide substitutes where it requires such persons to be.

Sch. Dist. of Abington Twp. v. Schempp, 374 US. 203, 297?98 (1963) (Brennan, J., concurring)
(emphasis added). Government-run chaplain programs are justi?ed as a religious
accommodation only when they relieve a government-imposed burden on religious exercise. It

may be impossible for military service members to ?nd a place of worship while on a mission in
a foreign country or for an inmate in a prison to ?nd a way to worship. But there is no
comparable government-imposed burden on the free exercise rights of traumatized persons when
a Justice of the Peace is performing an inquest into the death of a person. Therefore, ?religious
accommodation? does not provide a constitutional justi?cation for Judge Mack?s court
Chaplaincy program.

Judge Mack?s program provides chaplains not because any branch of the government has
created a burden on any person?s free exercise rights, but because the judge has chosen to act
outside of his of?cial duties. He has created an inherently religious program designed to promote
his personal religious views by ministering to traumatized people at scenes of death and
proselytizing citizens obligated to appear before him in court.

E. Conclusion

There is no constitutional justi?cation for Judge Mack?s courtroom prayer practice or his
Justice Court Chaplaincy Program. Judge Mack?s courtroom prayers are historically unsupported
and factually distinct from the legislative prayer upheld in Marsh and Greece or the ceremonial
deism practiced before Texas and U.S. Supreme Court sessions. The practice violates the
Establishment Clause due to its religious purpose, religious effect and endorsement, and
inherently coercive nature. And Judge Mack?s Justice Court Chaplaincy Program is itself a
constitutional Violation that cannot justify his courtroom prayers. Both the chaplain program and
courtroom prayer practice must be stopped immediately.

Respe tfully submitted,

    

am Grover
Staff Attorney
Freedom From Religion Foundation