The 5th U.S. Circuit Court of Appeals has thrown a wrench in a campaign launched by an anti-religion organization against a Texas judge who allows non-partisan and non-sectarian invocations at the start of court sessions.
The case was launched against Wayne Mack, a justice of the peace from Montgomery County, by the Freedom From Religion Foundation, aided by the Texas State Commission on Judicial Conduct.
At issue is a program Mack created when he, in his role as coroner, arrived at a fatal accident scene and was unable to find someone to help counsel the victim’s family.
He set up a voluntary chaplaincy program that involves a diverse coalition of members representing “Protestantism, Catholicism, Buddhism, Hinduism, Judaism, and Islam.”
To thank them, he allows volunteers to be recognized in his court, where they offer a prayer or “encouraging words.”
He installed signs letting people know of the activity, specifically giving them permission to not be in the courtroom during any such address.
Further, the record reveals “no evidence that anyone has ever been disciplined, criticized, or suffered any adverse outcome whatsoever based on” their presence or absence during the invocation.
“Judge Mack is grateful that the Fifth Circuit allowed him to continue following our nation’s long history and tradition of opening court proceedings with prayer,” said Justin Butterfield, deputy general counsel to First Liberty. “We agree with the Fifth Circuit’s conclusion that prohibiting the prayers was wrong. It’s time for the Freedom From Religion Foundation and the State Commission on Judicial Conduct to end their harassment of Judge Mack.”
Mack said, in a statement released through the institute, “I am so very grateful that we have our chaplaincy program in place to assist with helping families in our county through terrible tragedies and to provide a moment of perspective as our court begins proceedings.”
In its stay, the Fifth Circuit stated Judge Mack “has made a strong showing that the district court erred” in siding with Freedom From Religion Foundation in its lawsuit.
The court continued: “…as to FFRF’s individual-capacity claim, that too is likely to fail. The Supreme Court has held that our Nation’s history and tradition allow legislatures to use tax dollars to pay for chaplains who perform sectarian prayers before sessions. If anything, Judge Mack’s chaplaincy program raises fewer questions under the Establishment Clause because it uses zero tax dollars and operates on a volunteer basis. And the Supreme Court recently reaffirmed Marsh in upholding a legislature’s unpaid, volunteer chaplaincy program comprised almost exclusively of Christians.”
The appeals court noted that the FFRF repeatedly has complained about Mack, and finally found “a receptive ear at the Texas State Commission on Judicial Conduct.”
FFRF filed a complaint against Mack with the commission in 2014. In 2015 the commission issued a letter of “caution” to Mack, but took no further action. Then the commission asked the Texas attorney general for an opinion, to which AG Ken Paxton confirmed the program is “consistent with the Establish Clause.”
But both the FFRF and the Commission continued the battle.
Three plaintiffs sued Mack in 2017, a case that was dismissed.
Then FFRF and one plaintiff sued again, finally gaining approval for their action from one district judge.
The appeals court immediately issued a stay but the commission then opened yet another investigation just last month, ignoring the fact that the 5th Circuit had ruled, and had “specifically authorized Judge Mack” to continue his program.
The appeals court said Mack is likely to succeed on appeal and the district court’s “adjudication” was “manifestly erroneous.”
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