On Wednesday, February 17, Texas Lt. Governor Dan Patrick asked Attorney General Ken Paxton to provide a legal opinion clarifying the constitutionality of Texas Judge Wayne Mack’s volunteer chaplaincy program and his practice of allowing chaplains to open court sessions in prayer.
Judge Mack—represented by First Liberty Institute (formerly Liberty Institute)—was the target of a complaint by the Freedom From Religion Foundation. The complaint resulted in the Texas State Commission on Judicial Conduct launching a full investigation and an ethics hearing against Judge Mack.
ATTACKED FOR COMPASSIONATE PROGRAM
Several years ago, Judge Mack, a Justice of the Peace for Montgomery County, implemented a volunteer chaplaincy program for religious leaders of all faiths.
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. 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, inviting religious leaders of every faith in the community to join. 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 medical examiner.
In order to honor the volunteer chaplains’ work and to solemnize his courtroom proceedings, Judge Mack invites volunteer chaplains to open his court proceedings with a short prayer.
After receiving the complaint from the Freedom from Religion Foundation, the Texas State Commission stepped in.
COMPLAINT DISMISSED, BUT . . .
In October 2015, attorneys for First Liberty Institute represented Judge Mack at a hearing before the Commission. Soon after, the Commission officially dismissed the complaint, but “strongly cautioned” Judge Mack to dismantle the chaplaincy program and end his practice of opening his court sessions in prayer.
First Liberty Institute attorneys disagreed. They say the Constitution permits Judge Mack’s practices.
They point out that 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 State of Texas and this honorable Court.”
Additionally, the prayers given during Judge Mack’s opening ceremonies are very similar to those upheld in the U.S. Supreme Court cases of Town of Greece v. Galloway and Marsh v. Chambers. (This was a case in which First Liberty contributed an amicus brief.)
NEED FOR CLARIFICATION
The Commission’s controversial “caution” letter and recommendation that the program be ended triggered the request from the Lt. Governor of the state.
Lt. Governor Dan Patrick says, “Based on United States Supreme Court precedent, in my view, both of these programs are constitutional and consistent with a long history in the United States of acknowledging the role of religion in American life by all three branches of government.”
Patrick continued, “It is my hope that an expeditious opinion by the Texas Attorney General will provide Judge Mack and all Texas Judges the clarity they deserve as to the constitutionality of these programs.”
“Judge Mack’s practice of opening his court sessions in prayer is protected under legal precedent and mirrors the tradition of both the Texas and United States Supreme Courts,” said Kelly Shackelford, President and CEO of First Liberty Institute. “We are grateful Lt. Governor Patrick has asked Attorney General Paxton to bring clarity to this important issue, addressing the constitutionality of volunteer chaplains and prayer in the public arena.”