Judge Mack - Cases - First Liberty

 

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.

“Judge Mack is grateful that the Fifth Circuit allowed him to continue following our nation’s long history and tradition of opening court proceedings with prayer,” said Justin Butterfield, Deputy General Counsel to First Liberty. “We agree with the Fifth Circuit’s conclusion that prohibiting the prayers was wrong. It’s time for the Freedom From Religion Foundation and the State Commission on Judicial Conduct to end their harassment of Judge Mack.”

‘I am so very grateful that we have our chaplaincy program in place to assist with helping families in our county through terrible tragedies and to provide a moment of perspective as our court begins proceedings,” said Judge Mack. “I am pleased that this program can continue while we are presenting our case to the 5th Circuit.”

News Release
For Immediate Release: 7.12.21
Contact: Lacey McNiel, media@firstliberty.org
Direct: 972-941-4453

Federal Court Sides with Texas Judge’s Chaplain-led Invocations Prior to Texas State Court Proceedings
Fifth Circuit issues ruling that allows prayers while lawsuit against Judge proceeds

Montgomery County, TX—The U.S. Court of Appeals for the Fifth Circuit last week issued a stay permitting First Liberty Institute client Judge Wayne Mack, a Montgomery County Justice of the Peace, to continue allowing chaplains to offer invocations at the start of his court sessions while a lawsuit against him is considered by the courts.

You can read the court’s decision here.

“Judge Mack is grateful that the Fifth Circuit allowed him to continue following our nation’s long history and tradition of opening court proceedings with prayer,” said Justin Butterfield, Deputy General Counsel to First Liberty. “We agree with the Fifth Circuit’s conclusion that prohibiting the prayers was wrong. It’s time for the Freedom From Religion Foundation and the State Commission on Judicial Conduct to end their harassment of Judge Mack.”

‘I am so very grateful that we have our chaplaincy program in place to assist with helping families in our county through terrible tragedies and to provide a moment of perspective as our court begins proceedings,” said Judge Mack. “I am pleased that this program can continue while we are presenting our case to the 5th Circuit.”

In its stay, the Fifth Circuit stated Judge Mack “has made a strong showing that the district court erred” in siding with Freedom From Religion Foundation in its lawsuit against the Montgomery County Judge.  The court continued: “…as to FFRF’s individual-capacity claim, that too is likely to fail. The Supreme Court has held that our Nation’s history and tradition allow legislatures to use tax dollars to pay for chaplains who perform sectarian prayers before sessions. If anything, Judge Mack’s chaplaincy program raises fewer questions under the Establishment Clause because it uses zero tax dollars and operates on a volunteer basis. And the Supreme Court recently reaffirmed Marsh in upholding a legislature’s unpaid, volunteer chaplaincy program comprised almost exclusively of Christians.”

Mack, whose duties include serving as a coroner for Montgomery County, created a volunteer chaplaincy program to aid members of the community while he conducts independent death investigations.  In his role as Justice of the Peace, Judge Mack allows the multi-faith, volunteer chaplains to open his courtroom ceremonies with a brief invocation and the pledge of allegiance in order to honor their service. The chaplaincy program includes leaders from multiple faiths, including Christian, Sunni Muslim, Buddhist, and Hindu religious leaders.

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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 Lacey McNiel at media@firstliberty.org or by calling 972-941-4453.


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