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Yesterday, the Fifth Circuit Court of Appeals ruled 2-1 in favor of Wayne Mack, a Texas judge who opens each courtroom session with coercive Christian prayers, reversing an earlier decision against him. It’s the latest example of a conservative court further eroding church/state separation in favor of performative Christianity.

This isn’t even a complicated case. The one thing a judge should never do is make one side feel like it’s not getting a fair shake in the courtroom. Both sides should expect a fair hearing and anything that detracts from that is a problem. Obviously.

And yet that’s precisely what Montgomery County Justice of the Peace Wayne Mack has been doing for years. In 2014, the Freedom From Religion Foundation even wrote a letter condemning his actions when he opened a court session with a five-minute Bible reading… followed by a formal prayer.

We understand that in August you opened one of your court sessions with the Christian prayer. We believe that this is regular practice in your courtroom. A concerned Montgomery County resident who had business before you contacted us to report that after you entered the courtroom you stated, “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.” After that announcement, we understand that you introduced a pastor who read from the bible for more than five minutes. While the pastor was reading, our complainant says, “I felt that the Judge was watching for reactions from the courtroom; bowed heads, indifference, etc. I definitely felt that our cases would be affected by our reactions [to the bible reading].” Our complainant further says, “Once the Bible reading was over we were then asked to bow our heads to prayI 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.

To repeat: Mack began a court session by announcing a prayer, told people to get out of his courtroom if they didn’t want to hear it, then had a pastor deliver a five-minute Bible reading, after which everyone was told to bow their heads to pray.

It’s the sort of thing that would never be permitted if we weren’t talking about Christianity. And obviously the person who contacted FFRF feared that there would be consequences for not joining in, despite Mack insisting there wouldn’t be. (That complaint is virtually identical to what football players said about coach Joseph Kennedy in the recent Bremerton case. They felt coerced into joining because they didn’t want to get on his bad side.)

It didn’t matter that Mack said “your case will not be affected” when all of his other actions indicated otherwise. Mack never responded to that letter, but a month later, promoting a prayer breakfast he was speaking at, he sent an email to supporters saying this:

… I will be addressing [FFRF’s] demand that we “immediately end the practice of court prayer” at the Oct 23rd Prayer Breakfast. I am not seeking the potential controversy, as I will have to respond to these groups as well. We are on strong moral and legal ground.

I want to make a statement to show those that feel what we are doing is unacceptable, that not only is it acceptable to our community, but show them that God has a place in all aspects of our lives and public service, during times of tragedy and conflict, when we as a community need to bring peace to the storm. That it is reflected in how we as a community respond and treat each other during these times of tragedy.

Mack made it sound like Christianity was the default religion for everyone. That’s precisely why he was wrong, especially because of his position as a judge. He had no right ignoring separation of church and state just because the majority of his community shared his faith.

It’s the sort of thinking that ought to disqualify him as a judge—and probably would if he were Muslim or atheist or a Satanist.

The State Commission on Judicial Conduct was eventually tasked with investigating Mack… but they did nothing. They just asked him to fall in line with the practices of other courtrooms without telling him explicitly to stop praying.

By 2015, Mack changed his ways. Kind of.

After the introduction by the bailiff, Judge Mack enters the courtroom. While everyone remains standing, Judge Mack talks briefly about his chaplaincy program and introduces a religious leader from the program, who wears an official badge issued by Judge Mack.

After Judge Mack’s introduction, the chaplain leads a prayer, sometimes preceded by a short sermon. The prayers and sermons are directed to those in attendance in the courtroom and everyone present is asked to participate, or show obeisance, by bowing their heads.

… During the bailiff’s introduction, the chaplain-led prayer, and the courtroom business that follows, the courtroom doors remain magnetically locked. To exit, a person must push a button and reentry can only be granted by someone already inside the courtroom. Those seeking reentry after the prayers would need to draw attention to themselves by knocking on the courtroom doors.

In some ways, that was even worse. The whole point was to make non-Christians feel like outcasts in the courtroom.

That’s when FFRF decided to sue Mack on behalf of several clients who had appeared in front of him. While the initial case was dismissed on a technicality, FFRF’s next lawsuit corrected that issue and went after Mack both as an individual and “in his official judicial capacity on behalf of the State of Texas.”

U.S. District Judge Kenneth M. Hoyt issued his ruling in May of 2021: He said Mack was out of bounds by foisting his religion upon everyone.

The Court is of the view that the defendant [Mack] violates the Establishment Clause when, before a captured audience of litigants and their counsel, he presents himself as theopneustically-inspired, enabling him to advance, through the Chaplaincy Program, God’s “larger purpose.” Such a magnanimous goal flies in the face of historical tradition, and makes a mockery of both, religion and law. Accordingly, the plaintiffs are entitled to a summary judgment. Therefore, the Court declares that the defendant’s practice of opening regular court proceedings with religious prayers is unconstitutional… Should the defendant violate this Court’s declaratory decree, an injunction will issue.

In plain English, that meant Mack had to stop turning his courtroom into a church. And if he refused to do so, the consequences would be much more severe.

FFRF celebrated the decision at the time, calling it a “straightforward and accurate interpretation of the Establishment Clause.”

But there was an appeal. Why wouldn’t there be? The Fifth Circuit is known to be a safe space for conservatives who want to argue anything. And that’s what led to yesterday’s 2-1 ruling overturning the earlier decision.

The two judges in the majority took the argument from Mack at face value, dismissing the idea that there was anything coercive about his courtroom prayers:

The plaintiffs cry coercion because Texas Justice of the Peace Wayne Mack opens his court with a ceremony that includes a prayer. But Mack also takes great pains to convince attendees that they need not watch the ceremonyand that doing so will not affect their cases. Some attendees say they feel subjective pressure anyway. Yet the plaintiffs have no evidence suggesting that “coercion is a real and substantial likelihood.”

By that logic, all judges are allowed to impose their personal beliefs in their courtrooms as long as they include a disclaimer… no matter how sketchy this may appear to the very people seeking justice. We’re just supposed to take the judges’ word that they’ll be fair even if one side leaves the courtroom to avoid the Christian advertisement.

They also say that “historical evidence grounds Mack’s ceremonies in tradition,” as if Christians should be allowed to force prayers on others because they got a head start in this country.

If that doesn’t seem right to you, you’d be in the same camp as Judge E. Grady Jolly, who issued a partial dissent. (He concurred that there were factual disputes that needed to be resolved.) Jolly’s dissent goes right at the heart of the coercion issue. He can’t believe his colleagues would think the courtroom prayers offered by Mack are harmless.

I invite the majority to step back and absorb the following picture painted by Plaintiffs’ evidence. When litigants enter Judge Mack’s courtroom, they must decide whether they will stay for the prayer ceremony or exit the courtroom for its duration. If they stay, thus aligning with Judge Mack, the courtroom is closed and the door is locked, leaving only the righteous with the judge. The litigants cannot sit back and observe: they are required to stand for the prayer ceremony. And when the actual prayer begins, the testimony indicates that Judge Mack scans the courtroom, leaving the impression upon litigants that he is indeed judging audience participation despite their supposed ability to abstain without consequence.

If a litigant who has chosen to stay in the courtroom does not participate, they risk upsetting Judge Mack, the decider of their cases, immediately before he hears their cases. It is reasonable to believe that nonparticipation will draw his ire: Judge Mack, a Pentecostal minister who has affirmatively stated that he seeks to spread the gospel of Jesus Christ, made a campaign promise to establish prayer in his courtroom. He has previously criticized opponents of his prayer ceremony and has acted hostile following a litigant’s noncooperation in the prayer… The testimony demonstrates that litigants recognize this risk and choose not to protest because of it.

For the majority to find that there is no evidence of coercion, suggests, in my opinion, willful blindness and indisputable error.

Those are the words of an older judge letting his younger colleagues have it.

Jolly went on to say that there’s no historical precedent for something like this. Unlike a legislative prayer, where there are “multiple decisionmakers,” Judge Mack is the sole decider. If he says they’re praying, the people in front of him know damn well they need to join in to stay on his good side. There’s just no parallel between what Mack is doing and what the Supreme Court has said is acceptable in other situations.

Jolly, by the way, was one of the judges who ruled in 1986 that teaching Creationism alongside evolution in Louisiana schools was unconstitutional. He had the right call then; he has the right call now. Unfortunately, in this case, Jolly was outnumbered.

What FFRF chooses to do now remains to be seen. In a statement to me last night, FFRF’s co-founder Annie Laurie Gaylor was deeply troubled by the ruling:

A court is not a church and a bench shouldn’t be a pulpit.

FFRF is deeply dismayed by what can only be described as a Christian nationalist decision, based on a hypocritical rewriting of history.

The court claims to be using the Supreme Court’s new ‘history and tradition’ test. If it were being honest, history would require that the panel rule in our favor.  It is also deeply dishonest to call the practice “noncoercive.”

A full statement will be released by FFRF later today.

It’s disappointing that even a lawsuit can’t force a judge to follow the law.

Mack can be a pastor. He can be a judge. He cannot be both at the same time. It’s a travesty that our legal system is letting him get away with this.

(Portions of this article were published earlier)

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Hemant Mehta is the founder of FriendlyAtheist.com, a YouTube creator, podcast co-host, and author of multiple books about atheism. He can be reached at @HemantMehta.