Judge Wayne Mack’s courtroom could have been mistaken for a Sunday morning church service. Christian prayers were routine. So were Bible readings. But no one seemed to mind until one resident appeared in Mack’s courtroom for a case in August 2014.
Mack, a justice of the peace in Montgomery County, Texas, came into court and announced: “We are going to say a prayer. If any of you are offended by that, you can leave into the hallway, and your case will not be affected.”
No one left.
A volunteer chaplain then read from the Bible for more than five minutes and implored those in court to bow their heads and pray.
“I was very uncomfortable and certainly felt that I was being coerced into following this ritual and that the outcome of my case depended upon my body language,” the resident said, according to a complaint filed with a judicial review board by the Freedom from Religion Foundation. “As far as I am concerned, I was … forced into a religious ceremony in court. … I don’t know if it matters or not, but (the judge) most certainly had an attitude of ‘I know this is against the law and that it’s a constitutional violation, but that’s just too bad.’ ”
But on Monday, Texas Attorney General Ken Paxton issued a six-page legal opinion defending the judge’s practice of beginning court with prayer.
“Nothing in the facts described suggests that the Justice of the Peace compels or coerces individuals in his courtroom to engage in a religious observance,” the attorney general wrote. “Accordingly, we believe a Justice of the Peace’s practice of opening daily court proceedings with a prayer by a volunteer chaplain … does not violate the Establishment Clause.”
Critics say it’s no surprise that Paxton sided with the judge. He’s pursued religious liberty issues aggressively and has filled high-level positions in his office with lawyers from religious-right legal groups – including the legal firm that defended Mack.
Sam Grover, an attorney with the Freedom from Religion Foundation, which pushes for separation of church and state, said Paxton’s legal opinion was “bending over backward to find courtroom prayer legal.”
The prayers in Mack’s courtroom began soon after he took office in 2014. In a September 2014 letter to Mack, the Freedom from Religion Foundation explained “that as a Justice of the Peace it was inappropriate and illegal for him to use his power and prestige to advance his personal, private religious views.” The group demanded that Mack stop.
But Mack refused, claiming he was under attack by “atheists.” In a mass email to his supporters, he wrote that “God has a place in all aspects of our lives and public service.”
The Freedom from Religion Foundation then filed a complaint with the Texas Commission on Judicial Conduct, the agency that investigates complaints about judges, calling Mack’s courtroom prayers unconstitutional government endorsements of religion.
Mack, meanwhile, teamed up with lawyers from the First Liberty Institute, a nonprofit religious liberty legal firm, to make his case for courtroom prayer.
First Liberty argued to the commission that the judge has every right to allow prayers in his courtroom. Religion, the group said, always has played a role in government. A summary of First Liberty’s arguments on its website notes that the U.S. Supreme Court opens with a solemnizing prayer and that the Texas Supreme Court opens with a prayer and by reciting, “God save the United States and this honorable court.”
The commission ultimately dismissed the judicial misconduct complaint against Mack in November 2015. But in a letter to Mack, the commission cautioned the judge to stop the courtroom prayers.
It also took issue with Mack’s volunteer chaplain program. Mack served as county coroner and is the first responder to deaths in the county. Mack said he had trouble investigating the causes of death while also comforting families who had lost a loved one, so he created the volunteer chaplain program to enlist local pastors to “provide care and counsel to the mourners.” Those volunteer chaplains also would open his court proceedings with prayer.
The commission asked the Texas attorney general to weigh in on the matter. Lt. Gov. Dan Patrick also asked the attorney general for an opinion about courtroom prayer and the volunteer chaplain program and submitted a brief supporting Mack.
Courts have ruled that prayers are legal before certain legislative sessions. But few courts have tackled the issue of prayer in the courtroom. At least one federal appeals court ruled in a 1991 case that a North Carolina judge’s practice of personally reciting a prayer in his courtroom was unconstitutional. The appeals court ruled that the state judge’s prayers had no secular purpose, advanced religion and destroyed the appearance of the judge’s neutrality.
In February, the Texas attorney general agreed to review Mack’s courtroom practices.
But the Freedom from Religion Foundation openly questioned whether the attorney general’s deep ties to First Liberty would bleed into his legal opinion about Mack.
Leading lawyers from First Liberty now hold prominent positions in Paxton’s office.
In March, Paxton handpicked Jeff Mateer, former general counsel for the First Liberty Institute, as his second-in-command in the attorney general’s office. The job was not publicly posted, raising questions about whether the hiring was proper. During his time at First Liberty, Mateer helped fight a city ordinance that extended antidiscrimination protections to people based on their gender and sexual identity and sued a Texas high school for stopping cheerleaders from carrying signs emblazoned with Bible verses during sporting events, according to The Texas Tribune.
One month later, Paxton hired Hiram Sasser, also of First Liberty, as his chief of staff. Sasser left the attorney general’s office after a little more than one month, citing a family medical emergency. He soon was back at First Liberty as its deputy chief counsel.
In addition, Kelly Shackelford, president and CEO of First Liberty, is a personal friend of Paxton’s whom the attorney general credits with inspiring his political career. Shackelford recently donated $1,000 as a “personal gift” to Paxton’s legal defense fund as the attorney general faces multiple felony charges for securities fraud, according to The Dallas Morning News.
“It is our sincere hope that the … Attorney General will issue an objective opinion on the current state of the law, despite its recent hiring of two attorneys from First Liberty,” Freedom from Religion wrote in a brief to Paxton’s office. “First Liberty, of course, defended Judge Mack’s courtroom prayer practice before the State Commission on Judicial Conduct. The conflict of interest here should be apparent.”
A spokesman for Paxton’s office declined to comment, saying the attorney general’s opinion – which affirmed the constitutionality of courtroom prayer and Mack’s volunteer chaplain program – speaks for itself.
Chelsey Youman, chief of staff for First Liberty, brushed off concerns that Paxton’s office couldn’t be impartial. She called Paxton’s opinion “a resounding victory” that “paves the way for other judges at different levels of court in Texas to open with an invocation.”
Next week, Paxton is scheduled to speak at a Baptist church on behalf of Project 75, an initiative to encourage Christians to vote according to a biblical worldview. Also speaking will be Michael Berry, a senior counsel at the First Liberty Institute.
Amy Julia Harris can be reached at aharris@cironline.org. Follow her on Twitter: @amyjharris.
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