Image: Order of the United States Court of Appeals for the Fifth Circuit at New Orleans, which allowed, on an emergency basis, Precinct 1 Montgomery County Justice of the Peace Wayne Mack to continue to offer invocations at the beginning of his court sessions.
The Golden Hammer Staff Reports
New Orleans, Montgomery, and Willis, July 13 – The United States Court of Appeals for the Fifth Circuit, sitting in New Orleans, Louisiana, issued a stay order on Friday, July 9, 2021, which permits Precinct 1 Montgomery County Justice of the Peace Wayne Mack to continue to offer invocations at the beginning of his court sessions during the pendency of his appeal from an adverse ruling of United States District Court Judge Ken Hoyt of Houston. “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.”
Mack’s appellate counsel, Justice Butterfield, the Deputy General Counsel of First Liberty Institute, added, “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. 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.”
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 to the flag in order to honor their service. The chaplaincy program includes leaders from multiple faiths, including Christian, Sunni Muslim, Buddhist, and Hindu religious leaders.
In granting the stay, Circuit Judge Andrew S. Oldham wrote, “It’s beyond cavil that Judge Mack will be irreparably harmed in the absence of a stay pending appeal. That’s for two independent reasons.” Judge Oldham then explained those two reasons as follows:
- Federalism principles. “First, the district court’s declaration treads on important federalism principles…To respect the independence of state courts, Congress carefully circumscribed the remedies it authorized against state judges. See 42 U.S.C § 1983 (‘injunctive relief shall not be granted’ against a state judge ‘unless a declaratory decree was violated or declaratory relief was unavailable’). And the Supreme Court has recognized a ‘need for restraint by federal courts called on to enjoin the actions of state judicial officers.’…The district court’s declaratory remedy superintends Judge Mack’s courtroom in violation of these federalism principles. And in that way, the remedy is reminiscent of others that we’ve stayed or vacated…Federalism principles therefore warrant a stay.”
- Bullying by Texas Judicial Conduct Commission. “Second, and independently, the Texas State Commission on Judicial Conduct has made clear that it intends to pursue its ‘Inquiry’ against Judge Mack while his appeal is pending. One might’ve thought that the Texas Attorney General’s opinion in this matter would’ve tempered the Commission. After all, the Attorney General agreed with Judge Mack, and that alone is sufficient to give the judge a good-faith basis for continuing his opening ceremonies…It’s therefore unclear what conceivable basis the Commission could have to ask whether Judge Mack’s compliance with an Attorney General opinion constituted ‘willful and persistent conduct that was clearly inconsistent with the proper performance of [his] duties.’…If the Attorney General’s opinion was not enough, one might’ve thought that the Commission would await our appellate review of the district court’s judgment. But Judge Mack’s notice of appeal plainly did nothing to slow the Commission. Failing that, one might’ve thought the Commission would delay its ‘Inquiry’ after we entered our first stay. Wrong again. The Commission’s demand that Judge Mack participate in its ‘Inquiry’—basedon nothing more than the view of a single district judge, in conflict with the Texas Attorney General and our stay panel, and without awaiting an orderly disposition of Judge Mack’s appeal—clearly constitutes irreparable injury. And it too warrants a stay pending appeal.”
In other words, the stay by the United States Court of Appeals for the Fifth Circuit should, in the view of that Court of Appeals, stop the Texas Judicial Conduct Commission’s “inquiry” against Judge Mack.