Appeal filed on decision in courtroom prayer case
A new front has opened in the legal battle over prayer in Montgomery County Justice of the Peace Wayne Mack’s courtroom.
Mack’s lawyers last week filed an appeal to a federal judge’s decision that prayer by a volunteer chaplain before court proceedings violated the U.S. Constitution’s Establishment Clause against an establishment of religion.
Filed Sept. 22, the appeal to the U.S. Fifth Circuit Court of Appeals comes after the same court on July 9 granted a motion to stay, allowing invocation by a chaplain to continue in Mack’s Class C misdemeanor and small claims court in Willis.
“It is frustrating that this lawsuit against a longstanding, historic practice continues to distract us from the business of serving the citizens of Montgomery County,” read a statement from Mack.
Mack is being represented by First Liberty Institute, a Planobased nonprofit which bills itself as protecting religious liberty, and by the Los Angeles-based law firm Gibson, Dunn & Crutcher. The seven-year judge was sued by the Wisconsin-based Freedom From Religion Foundation, which advocates for the separation of church and state.
Referencing a letter from Mack to supporters, Southern District of Texas Judge Kenneth Hoyt wrote in his May 22 decision that the judge used the chaplaincy program to advance “God’s ‘larger purpose.’” Hoyt wrote “such a magnanimous goal flies in the face of historical tradition, and makes a mockery of both, religion and law.”
The appeal states Mack’s case is “materially indistinguishable” from the U.S. Supreme Court’s 2014 upholding of a similar prayer practice in the Town of Greece v. George Galloway case.
Running 45 pages long, the appeal also reiterates some of Mack’s counsel’s previous arguments in favor of the practice of prayer in his courtroom.
The “God save the United States and this honorable court” invocation uttered in the Supreme Court is cited by Mack’s lawyers. The suit by FFRF argued the Supreme Court does not solicit its attendees’ participation, whereas Mack’s courtroom prayer does.
Also cited in the appeal is the chaplaincy program consisting of a cross-section of faiths.
Mack “has actively sought diverse participation, and all members of the faith-based community are welcome to participate,” reads the appeal.
A co-plaintiff in the suit brought against Mack by FFRF maintained he felt he could not refuse to pray in Mack’s courtroom without incurring prejudice from the judge when he served as a lawyer before him.
Mack “views his courtroom as a missionary field. Sorry, but that’s not why we have courts,” FFRF’s co-president Annie Laurie Gaylor told the Houston Chronicle following Judge
Hoyt’s decision.
In granting a motion to stay, Fifth Circuit Judge Andrew Oldham wrote Mack had “made a strong showing that the district court erred.”
Oldham highlighted that the program was voluntary, interfaith, brief and optional, adding there was no evidence of ramifications against those not participating in the prayer.
Mack instituted the countywide chaplaincy program shortly after his 2014 election to his current position as Montgomery County Precinct 1 justice of the peace, in which he also acts as coroner. Chaplains respond to deaths to counsel the bereaved.
A previous suit from FFRF on the issue was dismissed in 2018 after Mack was removed as a defendant and the foundation was left suing the state.
That original suit garnered Mack support from Texas Attorney General Ken Paxton, who in a 2017 statement decried legal action against the judge’s courtroom prayer as an attempt “to exclude religious freedom from public life.”