Religious Law

Chaplain's prayer before court isn't coercive, doesn't violate establishment clause, 5th Circuit rules

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A federal appeals court has rejected an establishment clause challenge to chaplain-led prayer before court sessions at a justice of the peace court in Texas.

The 5th U.S. Circuit Court of Appeals at New Orleans ruled Sept. 29 that the prayers instituted by Justice of the Peace Wayne Mack were constitutional because they weren’t coercive.

Visitors arriving at Mack’s court see a message on the door and on a nearby TV screen that says the court begins with a brief opening ceremony led by a volunteer chaplain, the appeals court said in an opinion by Judge Jerry E. Smith. The visitors are informed that they don’t have to be present or participate.

Before the ceremony, a bailiff reiterates that no one has to stay for the invocation, and participation won’t affect court decisions. He then tells people in the courtroom that they can now exit. The courtroom door is closed during the ceremony when there is only one bailiff present, and people who want to leave have to press a small button.

Mack was a Pentecostal minister and the county coroner before he became a justice of the peace. The latest job requires him to oversee civil controversies of $20,000 or less and criminal offenses punishable by only fines.

When he was the coroner, Mack wasn’t able to get a chaplain to the scene of a woman’s death to perform religious rites. When he ran for justice of the peace, he ran on a platform promising to establish a chaplaincy program and to open court sessions with prayer.

Mack kept his campaign promises after his election. He created the Justice Court Chaplaincy Program in which faith leaders could agree to be on call for sudden tragedies in which help is sought. Chaplains can also agree to counsel only members of their faith who ask for help.

Mack invites participating chaplains to give the court invocation to honor and thank them for their service. He has recruited chaplains of different faiths and says the participating clergy and laypersons are members of Protestant, Catholic, Buddhist, Hindu, Jewish and Islamic religions. Critics, however, say chaplains are predominantly Protestant, and current chaplains are members of only Christian and Islamic faiths.

The parties disputed whether Mack faces the audience during the invocation (he says he faces the flags behind his chair). Some thought that failing to bow their head or expressing indifference led Mack to take tougher stances in their cases.

The plaintiff in the lawsuit, appearing under the name John Roe, said he felt compelled to remain in the courtroom during the prayers, even though he “objects to a government official telling him when or how to pray.” He now turns down cases that would require him to appear in Mack’s court.

But the 5th Circuit found that there was no coercion and said the courtroom prayers were consistent with historical practices.

The 5th Circuit cited Town of Greece v. Galloway, a 2014 case in which the U.S. Supreme Court upheld sectarian Christian prayers before town board meetings. The plurality opinion in Galloway noted a long history of prayer before legislative sessions.

Looking to history before court sessions, the 5th Circuit said it was common for founding-era justices to preside over court-term opening ceremonies in which chaplains prayed, and that those justices “personally delivered short, ecumenical supplications in charges to grand jurors and, sometimes, in their judicial opinions.”

The 5th Circuit also noted “short, ecumenical supplications” that federal courts have recited, such as “God save this honorable court” and asking witnesses to swear “so help you God.”

Judge E. Grady Jolly partly concurred and partly dissented. He said the court-prayer case should not have been decided on a motion for summary judgment because factual disputes have not been resolved.

He also dissented on the establishment clause issue.

“For the majority to find that there is no evidence of coercion, suggests, in my opinion, willful blindness and indisputable error,” Jolly wrote.

The 5th Circuit decision relied on a “history and tradition test” to evaluate the constitutionality of the prayer, according to a Sept. 30 press release by the Freedom From Religion Foundation, the organization that represented Roe.

That test was recently used by the Supreme Court when it ruled for a praying football coach in Kennedy v. Bremerton School District, according to the press release. That case considered whether the Bremerton School District near Seattle violated the First Amendment rights of the assistant coach, Joseph A. Kennedy. The First Liberty Institute represented the coach and also represented Mack in the 5th Circuit case.

Gibson, Dunn & Crutcher also represented Mack.

“As the court explained, the ‘history, character and context’ of Judge Mack’s ceremony ‘show that it is no establishment at all,’” said Bradley Hubbard, a Gibson Dunn lawyer, in a Sept. 29 press release from the First Liberty Institute.

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