Judge Mack Case

Judge Mack Starts the Volunteer Chaplaincy Program

When Judge Mack was elected in Montgomery County, there were no medical examiners in the county. As Justice of the Peace, Judge Mack therefore serves as a coroner for the county. Judge Mack implemented a volunteer chaplaincy program, to which he invited religious leaders of every faith represented in Montgomery County.

Now, when there is a death in the precinct, mourners are asked if they would like a volunteer chaplain at the scene, and if so, of what faith. This gives mourners the opportunity to be comforted according to their wishes and religious beliefs, while permitting Judge Mack to focus on his duties as coroner.

To recognize the volunteer chaplains who sacrificed their time and energy to serve families in crisis and to solemnize his courtroom proceedings, Judge Mack invites the volunteer chaplains to open his court proceedings with a brief invocation of two minutes or less.

Invocations Comes Under Attack

Despite clear legal precedent for Judge Mack’s action, the Freedom from Religion Foundation complained. The group sent a letter of complaint to the Texas State Commission (“Commission”) on Judicial Conduct, resulting in the Commission launching an investigation into Judge Mack’s conduct. On October 14, 2015, Judge Mack appeared before the Commission, along with his attorneys from First Liberty Institute. First Liberty Institute attorneys defended Judge Mack’s and asked that the Commission dismiss the charges against Judge Mack.

In November 2015, the Commission officially dismissed the complaint. That led to Texas Lt. Governor Dan Patrick asking Texas Attorney General Ken Paxton to provide a legal opinion clarifying the constitutionality of Judge Wayne Mack’s volunteer chaplaincy program and his practice of allowing chaplains to open court sessions with an invocation. Attorney General Paxton provided that guidance, clarifying the practice for Justices of the Peace like Judge Mack all over Texas. Read Attorney General Paxton’s opinion by clicking here.

Judge Mack Faces a New Fight

But, the Freedom of Religion Foundation (FFRF) filed a lawsuit against Judge Mack’s practice of opening court sessions with an invocation. Judge Mack retained First Liberty and law firm Gibson Dunn & Crutcher LLP to represent him in the lawsuit in his individual capacity.

“I was stunned to learn that I had been sued because I provide the opportunity for chaplains from all faith traditions to offer an invocation. I thought the Attorney General’s opinion settled this issue,” said Judge Mack.

Attorneys with First Liberty asked the court to dismiss the lawsuit. Texas State Attorney General, Ken Paxton, asked to intervene in the lawsuit in support of Judge Mack. U.S. Congressman Kevin Brady from Texas rallied behind Judge Mack, saying, “Make no mistake, this hollow federal lawsuit is designed specifically to intimidate Judge Mack and others who are following our national traditions in the footsteps of the Founding Fathers. It will fail. Judge Mack has the courage to stand strong for our history and tradition, and I, and many others in our nation, are proud to stand with him.”

Soon after the filing of the lawsuit, the plaintiffs acknowledged that they only wanted to challenge Judge Mack in his official capacity as a Justice of the Peace for Montgomery County. A federal judge agreed with the plaintiff’s request, dismissing Judge Mack from the suit in his personal capacity, but allowing the challenge against Montgomery County to continue for now. First Liberty and attorneys with Gibson, Dunn, & Crutcher, LLP filed a friend-of-the-court brief once again defending the practice of opening court sessions with an invocation.

In September of 2018, a federal judge finally dismissed the case.

But that hasn’t stopped FRFF from attacking the Judge.  In May 2019, FRFF filed yet another lawsuit against Judge Mack!

After a federal judge initially ruled against Judge Mack, in July 2021 the U.S. Court of Appeals for the Fifth Circuit  issued a stay permitting Judge Wayne Mack to continue allowing chaplains to offer invocations at the start of his court sessions while a lawsuit against him is considered by the courts.  In September, First Liberty and our volunteer attorneys filed the first brief at the Fifth Circuit in defense of Judge Mack’s practice.  Oral argument was heard by the Fifth Circuit in early April 2022.

In September 2022,  the Fifth Circuit upheld Texas Judge Mack’s practice of recognizing volunteer chaplains!

“The Fifth Circuit rightly concluded that Judge Mack’s brief ceremony respects a rich historical tradition of opening judicial proceedings with an invocation,” said Bradley Hubbard, the Gibson Dunn attorney who argued the case in April.  “As the Court explained, the ‘history, character, and context’ of Judge Mack’s ceremony ‘show that it is no establishment at all.’”

“I am eternally grateful to the judges on the Fifth Circuit who upheld this historical practice,” said Judge Mack.  “I look forward to continuing to serve the people of Montgomery County.”

“America has a rich tradition of opening public meetings—including judicial proceedings—with an invocation,” Jeremy Dys, Senior Counsel for First Liberty, said.  “Welcoming a volunteer chaplain to lead an invocation according to the tradition of his or her faith reflects the very best of our nation’s values.”