FFRF sues Texas judge to end courtroom prayer practice

FFRF filed a lawsuit against Justice of the Peace Wayne Mack on March 21, 2017, due to his refusal to end the practice of opening each of his court sessions with chaplain-led prayer. On January 22, 2018, Judge Ewing Werlein, Jr. denied Judge Mack and Montgomery County’s motions to dismiss, ruling that FFRF and two local plaintiffs—Jane Doe and John Roe, attorneys who regularly practice before Judge Mack—could proceed with their challenge to the prayer practice.

Judge Mack has his courtroom bailiff announce the prayers and state that anyone may leave the courtroom and their case will not be affected, although the courtroom doors are locked to those outside. Then Judge Mack enters, talks about his chaplaincy program, introduces a chaplain, and gives the name and location of the chaplain's church. While everyone in the courtroom remains standing, the chaplain may give a short sermon, or move directly to a prayer. Attendees report Judge Mack surveying the courtroom during prayers and feeling that their cases may be affected by how they chose to react.

The legal complaint asserts that due to his "considerable influence and power as a justice of the peace, Judge Mack exerts coercive influence over those in his courtroom, effectively compelling their participation in his religious practice." FFRF is seeking a judgment enjoining Mack from opening his court sessions with prayer and declaring his actions a violation of the Establishment Clause of the First Amendment. FFRF has filed an Expert Report, drafted by American legal historian and constitutional scholar Dr. Paul Finkelman, which details why Judge Mack's courtroom prayer practice is not historically supported.

Montgomery County and Judge Mack filed a Motion for Judgment on the Pleadings on March 14, 2018. FFRF filed a response on April 11, 2018. The court entered a ruling on that motion on September 27, 2018, dismissing the lawsuit for lack of redressability, without reaching the merits of the constitutional claims. On October 25, 2018, FFRF filed a motion for reconsideration of that ruling, on the grounds that the decision violates the plain language of 42 U.S.C. § 1983.

FFRF and the two local plaintiffs are being represented by FFRF Associate Counsel Sam Grover, with attorney Elizabeth Cavell serving as co-counsel. Attorney Patrick Luff of the Luff Law Firm in San Antonio, is serving as local counsel. Judge Ewing Werlein, Jr. is presiding over the case in the United States District Court for the Southern District of Texas, Houston Division. Freedom From Religion Foundation et al. v. Judge Wayne Mack and Montgomery County, Texas has case number 4:17-cv-881.

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