Judge Wayne Mack predictably angered atheist group Freedom from Religion Foundation for allowing volunteer chaplains to pray before court sessions in Montgomery County, and the legal fight with FFRF dates back to a 2017 federal lawsuit.
After refiling the lawsuit in 2019, Freedom from Religion Foundation announced in May it had won its lawsuit against Mack in a press release that accused the judge of “abusing his authority to coerce attorneys, litigants, and other citizens” to participate in courtroom prayers.
In a legal update to that ruling, First Liberty Institute attorney Justin Butterfield tells One News Now a federal appeals court has granted a stay on behalf of Mack. That legal decision amounts to a temporary victory for Mack and the chaplain program while the FFRF lawsuit is being considered but, in its ruling, the Fifth Circuit suggested Mack and his attorneys “made a strong showing” that the lower court had “erred” on behalf of FFRF and that Mack is likely to win his appeal.
And the appeals court wasn’t done, either.
“They issued a really good order that goes through the history of courtroom prayer in the United States and explains how this is actually following our nation's history,” Butterfield says of the Fifth Circuit ruling. “It comports with the Constitution. It fits with the Establishment Clause, and Judge Mack's been doing the right thing all along.”
Judges scold FFRF claims
According to the 23-page ruling, which can be read here, the three-judge panel stated that legislatures routinely use tax dollars to pay for chaplains and, in the case of Mack, he is using “zero tax dollars” for the volunteer program.
In the May press release, FFRF dismissed any comparison to legislative prayers because, in the view of the atheist group, the courtroom chaplains “directed their prayers to the audience, not the judge.”
The judges also knocked FFRF and its attorneys for citing a dissenting U.S. Supreme Court opinion by Justice Elana Kagan in the court's Town of Greece decision in 2014 on public prayer. Kagan wrote a hypothetical scenario in her dissent about a judge who instructs the gathering to participate but the judges point out that Mack does not do that.
The court order states:
It’s undisputed that Judge Mack by contrast has taken multiple steps (including oral and written instructions) to facilitate non-participation in his opening ceremonies. Moreover, it’s undisputed that Judge Mack’s opening ceremonies are open to chaplains of all faiths—not just Christians.
"It’s unclear," the three judges wrote, "what the district court and FFRF hope to gain from this hypothetical."