A Texas judge is being sued in federal court by the nation's leading secularist legal organization because of his courtroom tradition of having guest pastors and chaplains offer an invocation before each session.
The Wisconsin-based Freedom From Religion Foundation, which advocates for a strict separation of church and state, filed a lawsuit on Tuesday against Montgomery County Justice of the Peace Wayne Mack that argues that he has repeatedly violated the Establishment Clause of the First Amendment to the U.S. Constitution by holding Christian prayers at the beginning of each session.
The lawsuit was filed on behalf of three plaintiffs directly affected by Mack's courtroom prayer tradition and was filed in the U.S. District Court for the Southern District of Texas in Houston.
According to the lawsuit, Mack vowed to institute "religious values within the office" during his 2014 Republican primary campaign for his position as Justice of the Peace for Montgomery County Precinct 1. He also said that he would implement a "chaplaincy program."
"Shortly after assuming the office of Justice of the Peace on May 1, 2014, Judge Mack implemented the practice of opening each court session with a prayer delivered by a guest chaplain," the lawsuit explains.
In August 2014, one of the plaintiffs appeared in Mack's courtroom and quoted Mack as telling the crowd that if they are offended by the prayer, "you can leave into the hallway and your case will not be affected."
"The guest chaplain then stood and read from the Christian Bible for five to eight minutes, directing the reading to those present in the courtroom," the lawsuit claims. "After the five-to eight-minute sermon, the guest chaplain asked everyone to bow their heads for a prayer. During the prayer, Judge Mack did not bow his head, but observed those in the courtroom."
The lawsuit further explains that the plaintiff felt as though "the outcome of her case would be affected by how she chose to react."
"She did not leave after the invitation to do so out of fear that her actions would prejudice Judge Mack against her," the lawsuit continues. "She felt compelled by government authority to demonstrate obeisance to someone else's religion."
The lawsuit explains that Mack revised his prayer practice in May 2015 and now has the bailiff introduce the prayer before Mack enters the courtroom in order to prevent Mack from seeing who leaves the room when told of the prayer.
Although people are still allowed to leave the room during the prayer and short sermon, the doors are magnetically locked and can only be reopened by someone inside the room after someone knocks on the door to be let in. The lawsuit states that Mack began locking the door to the courtroom at about the same time he implemented the revisions to the chaplaincy program.
"All of the prayers witnessed by the three individual plaintiffs in Judge Mack's courtroom have been sectarian prayers, delivered by Christians, in the name of Jesus," the lawsuit reads. "The primary effect of Judge Mack's courtroom prayer practice is to advance religion in general, and Christianity specifically, through the machinery of the judiciary. Due to the prayer practice, Judge Mack's courtroom has become excessively entangled with an exclusively religious ritual."
The lawsuit asks the federal court for injunctive relief and for the court to declare that Mack violated the Constitution. Additionally, it calls for Mack to pay "reasonable costs, disbursements, and attorney's' fees" to the plaintiffs.
FFRF initially complained about Mack's prayer program in 2015. The Texas-based First Liberty Institute, a national law firm dedicated to protecting religious freedom, represented Mack before the Texas State Commission on Judicial Conduct.
The commission dismissed the complaint against Mack but members of the commission wrote a letter to the judge "strongly [cautioning him] against continuing with the Justice Court Chaplaincy Program and [his] current courtroom prayer service."
This led to Texas Lt. Gov. Dan Patrick calling on Texas Attorney Gen. Ken Paxton in February 2016 to issue an opinion about the legality of Mack's prayer practice.
"A Justice of the Peace does not violate the Establishment Clause by opening a court session with the statement 'God save the State of Texas and this Honorable Court,'" Paxton wrote last August. "A court would likely conclude that a Justice of the Peace's practice of opening daily court proceedings with a prayer by a volunteer chaplain as you describe is sufficiently similar to the facts in Galloway such that the practice does not violate the Establishment Clause. A court would likely conclude that the volunteer chaplain program you describe, which allows religious leaders to provide counseling to individuals in distress upon request, does not violate the Establishment Clause."
Commenting on FFRF's lawsuit filed Tuesday, First Liberty CEO and President Kelly Shackelford called Mack's prayer practice a "settled issue."
"Judge Mack's program is an excellent idea and a great way to serve the community," Shackelford said in a statement shared with The Christian Post. "It has already been upheld by both The Texas State Commission on Judicial Conduct and the Texas Attorney General."
"The law and Constitution are on Judge Mack's side," Shackelford continued. "This senseless attack by an atheist group is truly sad."