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 the coroner for the county. One of his duties is to act as a first-on-scene responder to deaths in the county. Judge Mack found it difficult to serve the emotional needs of mourners at the scene while also performing his professional duties as coroner.

To remedy this dilemma, 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 Volunteer Chaplains, Judge Mack Invites Them to Pray

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 prayer. Today, volunteer chaplains solemnize his court proceedings by opening each court session with a prayer of two minutes or less.

Opening Prayer Comes Under Attack

Before implementing the volunteer chaplaincy program, Judge Mack sought legal counsel to confirm its legality. He also made sure his practice of opening his proceedings with prayer is consistent with the tradition of both the Texas and United States Supreme Court, who open their court sessions with prayer. However, despite the clear legal precedent for Judge Mack’s action, the Freedom from Religion Foundation complained. On September 18, 2014, the group sent a letter of complaint to the Texas State Commission on Judicial Conduct, resulting in the Commission launching an investigation into Judge Mack’s conduct.

Prayer and the Chaplaincy Program Defended

On October 14, 2015, Judge Mack appeared before the Commission, along with his attorneys from First Liberty Institute. The attorneys made the following arguments:

  • From at least 1789, there has been an unbroken history of official acknowledgment by all three branches of government of religion’s role in American life. (Van Orden v. Perry, 2005).
  • The prayers given during Judge Mack’s opening ceremonies are in an almost identical situation as those upheld in the U.S. Supreme Court case of Town of Greece v. Galloway (2014).
  • The U.S. Supreme Court opens with a solemnizing prayer, while the Texas Supreme Court opens with a prayer and a recitation of “God save the United States and this honorable Court.”
  • The prayers given during Judge Mack’s opening ceremonies cannot be distinguished from those prayers given before the U.S. Supreme Court and the Texas Supreme Court.
  • The volunteer chaplaincy program comports with the requirements of the Establishment Clause because Judge Mack ensures no government funds or resources are used on the volunteer chaplain project and because chaplains of all faiths in the community were invited to join the program.

In light of these arguments, First Liberty Institute attorneys determined that Judge Mack’s practices are constitutional and respectfully requested that the Commission dismiss the charges against Judge Mack.

Complaint Dismissed…with a String Attached

In November 2015, the Commission officially dismissed the complaint. However, in dismissing the complaint, the Commission issued a letter to Judge Mack “strongly caution[ing him] against continuing with the Justice Court Chaplaincy Program and [his] current courtroom prayer practice.”

Although the Commission did not state that Judge Mack’s practices were in danger of violating the law, it nonetheless urged Judge Mack to “eliminat[e] the unauthorized Chaplaincy program and modify the opening prayer ceremony to comport with the perfunctory acknowledgement of religion that is accepted and employed by the United States Supreme Court and the Texas Supreme Court.”

On February 17, Texas Lt. Governor Dan Patrick asked 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 in prayer. On August 15, 2016, Attorney General Paxton issued a legal opinion affirming the constitutionality of both. Read the opinion.

“This is a total victory for Judge Mack and for the citizens of Texas,” Kelly Shackelford, President and CEO of First Liberty Institute, says. “If the Supreme Courts of the United States and Texas can open with prayer, clearly, the law allows for Judge Mack’s court to open with an invocation by a volunteer chaplain. We are grateful Attorney General Paxton has brought clarity to this important issue, reaffirming the constitutionality of prayer in the public arena.”

Paving the Way for All Texas Judges

Although an Attorney General opinion is not binding, it is persuasive precedent because it sends a clear message as to what the state’s top attorney believes is lawful. Attorney General Paxton’s opinion stating that Judge Mack’s courtroom practices are constitutional will provide necessary legal clarity and guidance to judges across Texas who may wish to emulate Judge Mack’s courtroom practices.

“This has been a long and arduous process,” Judge Mack says. “I’m thankful for Lieutenant Governor Patrick’s request for an opinion on this important issue and that Attorney General Paxton made clear that the Constitution permits judges to invite volunteer chaplains to open sessions of court with prayer. This is a clear victory for religious liberty.”


For Immediate Release: March 22, 2017

Contact: Kassie Dulin, kdulin@firstliberty.org
Cell: 214-542-4334, Direct: 972-941-4575


Plano, Texas – Yesterday evening, an activist group filed a lawsuit against Judge Wayne Mack over his practice of allowing volunteer chaplains to open his court sessions in prayer.

“Judge Mack’s program is an excellent idea and a great way to serve the community,” Kelly Shackelford, President and CEO of First Liberty Institute, says. “It has already been upheld by both The Texas State Commission on Judicial Conduct and the Texas Attorney General. It’s a settled issue.”

The group initially complained about Judge Mack’s interfaith chaplain prayer program in 2015. First Liberty Institute, a national religious freedom law firm, represented Judge Mack in a hearing with the Texas State Commission on Judicial Conduct, resulting in the commission dismissing the complaint.

In August 2016, Attorney General Ken Paxton issued a legal opinion clarifying that Judge Mack’s practices are well within the bounds of Texas law and the Constitution.

“The law and Constitution are on Judge Macks side. This senseless attack by an atheist group is truly sad,” Shackelford says.

Read the case background at FirstLiberty.org/JudgeMack

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About First Liberty Institute

First Liberty Institute is the largest legal organization in the nation dedicated exclusively to defending religious freedom for all Americans.

To arrange an interview, contact Kassie Dulin, Chief Communications Office for First Liberty Institute. Email: kdulin@firstliberty.org, Direct: 972-941-4575, Cell: 214-542-4334.

8/15/16 – Press Release 

Judge Mack - First Liberty