In Freedom from Religion v. Mack, decided September 29, 2022, the Fifth Circuit Court of Appeals held that it does not violate the Establishment Clause for a Texas judge to hold prayer sessions in the courtroom.

For many, the Establishment Clause is – or should be – simple. Keep religion out of our government. Church and state, in America, should be separate. There are many, many reasons why the government should not be in the business of endorsing, enforcing, or legislating religion, even if it is the predominant religion in the region or country.

I might say that religion causes more harm than good, especially when it is baked into a government’s laws and courts. A devout Christian might say that I’m wrong because their path to God is the only true path. Next comes a devout Muslim, Hindu, and representatives of all religions and no religion, who may believe that their way of thinking is the only true path.

All people should be free to practice their religion of choice or no religion at all. The flip side of that coin is that no person should be free to force their religion of choice on the rest of us. Government operations – whether it is a legislative body, police department, or courtroom – should never be a vehicle for the religiously devout to force their beliefs on others.

A government that is based on a particular religion and that enforces that religion’s morals on the rest of the society is a theocracy. Some devout Christians believe that would be a good thing for our country. Is it a good thing for the government of Iran, though? Afghanistan?

Texas? America?

Freedom from Religion v. Mack: Background

Judge Mack was a Pentecostal preacher who decided that he needed to bring his faith into Texas’ courtrooms – judges are elected positions in Texas.

He “affirmatively stated that he seeks to spread the gospel of Jesus Christ,” and, during the election, he “made a campaign promise to establish prayer in his courtroom.” That doesn’t mean he has any bias against non-Christians, though, right?

If his own statements are any indication… when a complaint was filed with the Commission on Judicial Conduct regarding his courtroom prayer sessions, he emailed his supporters to let them know that “local haters among us backed by bureaucrats in Austin and reinforced by well funded national organizations who exist for the purpose of removing our basic religious freedoms” had filed the complaint, and that he would press on in the face of the “liberal bias of a few.”

Do you want to be judged guilty or innocent, fined, or sent to prison by a man who sees you as a “liberal” “local hater” who is trying to remove the judge’s “basic religious freedoms?”

His statements illustrate a basic misunderstanding when it comes to religious freedom – freedom of religion must also mean freedom from religion. Our basic religious freedoms do not include a right to force our religion on others.

An attorney, with the assistance of the Freedom from Religion Foundation, filed a lawsuit alleging that the judge’s courtroom prayer sessions were coercive, that those who do not stand and bow their heads respectfully for the prayers are treated differently, and that the courtroom prayers violate the Establishment Clause.

A district court judge in Texas granted summary judgment to the plaintiffs – the courtroom prayer sessions violate the Establishment Clause and must cease. On appeal, the Fifth Circuit Court of Appeals reversed the grant of summary judgment to the plaintiffs and instead granted summary judgment to the judge – courtroom prayer sessions are well and good, there is no coercion, and people are free to leave the courtroom if they don’t want to hear about Jesus…

Is Government-Sponsored Prayer in the Courtroom Constitutional?

The question is not going to be decided based on a well-reasoned constitutional analysis. Each court that answers the question is going to find arguments to support its position, and the result is, unfortunately, more likely going to be decided by the judge or justice’s religious beliefs.

If you think that courtrooms and laws should be based on biblical principles, you are going to find arguments to support that position. If you think the US Constitution mandates the separation of church and state, you are going to find arguments to support that position…

Most likely, the US Supreme Court will answer this question sooner or later – a court that is made up of six Catholics, two protestants, and one Jew.

The Majority Opinion’s Reasoning

The authors of the majority opinion in Freedom from Religion v. Mack begin their legal opinion with a sarcastic attack on the plaintiff who dares to complain about religion in the courtroom: “The plaintiffs cry coercion because Texas Justice of the Peace Wayne Mack opens his court with a ceremony that includes a prayer.”

Pooh-pooh on these silly whiners…

In Town of Greece v. Galloway, in 2014, the US Supreme Court held that legislative prayer sessions do not violate the Establishment Clause. The Court based its decision, in part, on their finding that there is an “unambiguous and unbroken history of more than 200 years” of legislative prayer that has “continued virtually uninterrupted since the Founding.”

The Fifth Circuit’s majority opinion explains that this also applies to judicial prayer, citing the “plentiful” evidence that judicial prayer also has an “unambiguous and unbroken history of more than 200 years” that has “continued virtually uninterrupted since the Founding.”

The evidence they cite includes:

• Early American Supreme Court justices, while riding circuit in their horse and buggies, sometimes opened proceedings with prayers,
• Early American Supreme Court justices would include religious supplications in their charges to newly empaneled grand jurors,
• The Supreme Court and some other courts today open court sessions “with some version of the cry, ‘God save this honorable court,’”
• Oaths administered to witnesses may include phrases like, “So help you, God,”
• There is apparently a Supreme Court opinion that invokes a prayer,
• Death sentences may be accompanied by the declaration, “[M]ay the Almighty God have mercy on your soul,”
• The Fifth Circuit says there is “scattered evidence of pre-court prayers of uncertain regularity throughout the nineteenth and twentieth centuries,”
• An early Chief Justice of the US Supreme Court once said that it was the “ancient us[e]” and “custom” of some New England states to open court terms with a prayer,” and
• There is a prayer book from 1835 that includes a model “Prayer for Courts of Justice.”

This hardly shows an “unambiguous and unbroken history of more than 200 years” of judicial prayer that has “continued virtually uninterrupted since the Founding.” As legal arguments go, it’s grasping at straws and a bit sad.

Nevertheless, those local haters and liberals lose, because a circuit court of appeals has now said that judicial prayer sessions are constitutional…

Why Courtroom Prayer Sessions are Unconstitutional

Are the courtroom prayer sessions coercive?

When the prayer session begins, the doors are locked – if you try to enter or leave, all eyes are going to be on you. Those who remain in the courtroom are required to stand and bow their heads:

When litigants enter Judge Mack’s courtroom, they must decide whether they will stay for the prayer ceremony or exit the courtroom for its duration. If they stay, thus aligning with Judge Mack, the courtroom is closed and the door is locked, leaving only the righteous with the judge. The litigants cannot sit back and observe: they are required to stand for the prayer ceremony.

But the judge doesn’t pay attention, right? He doesn’t need to know who is a Christian, who is not, or who respectfully bows their head. According to the witnesses, the judge doesn’t bow his head respectfully. Rather, he is “scanning the courtroom” to see who among them is righteous:

And when the actual prayer begins, the testimony indicates that Judge Mack scans the courtroom, leaving the impression upon litigants that he is indeed judging audience participation despite their supposed ability to abstain without consequence.

The judge wouldn’t actually treat someone differently, though, right? An attorney witness in the case says that he was treated unfairly after the judge saw him declining to bow his head during the prayer:

Scott Smith, an attorney, once appeared in Judge Mack’s courtroom for an eviction hearing regarding his own property. When the prayer ceremony started, Smith chose not to bow his head for the prayer, and he claims that Judge Mack saw him. When it was time for Smith’s case, Smith claims that Judge Mack “acted unprofessional and hostile toward [him].” Smith states that Judge Mack twice left the courtroom during his case without explanation, and that when Smith commented on this, the Judge told Smith that he (the judge) “could do whatever he wants.” Smith further alleges that although he was entitled to damages by law, and that although state law provides for other remedies, Judge Mack denied his request for damages, did not give him the additional remedy, and tersely told Smith that he (again, the Judge)“didn’t have to do that” and that he “can do what he wants.”

Litigants or audience members are allowed to leave the courtroom before the prayer starts – but then they are locked out of the room and are only permitted to reenter once the judge is on the bench. They aren’t forced to remain in the courtroom during the prayer, but they cannot leave without the judge knowing…

In Galloway, the case that the majority opinion relied upon, the Supreme Court also pointed out that the legislative prayers were noncoercive because “[t]he principal audience for these invocations [was] not, indeed, the public but lawmakers themselves.”

In this case, a judge’s prayer sessions are not directed at fellow lawmakers as they were in Galloway. The prayers are directed at litigants (including criminal defendants) whom the judge has power over. The same judge who is directing the prayer sessions and carefully watching the audience to see who is pious will be deciding the audience’s cases, awarding or withholding money in civil cases, or imposing fines or jail time in criminal cases.

As the dissenting opinion in Freedom from Religion v. Mack says: “For the majority to find that there is no evidence of coercion, suggests, in my opinion, willful blindness and indisputable error.”

Criminal Defense Attorneys in Charleston, SC

Grant B. Smaldone is a criminal defense lawyer based in Charleston, SC whose law practice is focused on state and federal criminal cases in SC including preliminary hearings in SC state court.

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