In Freedom From Religion Foundation, Inc. v. Mack, (5th Cir., Dec. 2, 2022), the U.S. 5th Circuit Court of Appeals by a vote of 12-3 denied an en banc rehearing in a case decided by a 3-judge panel in September. (See prior posting.) The panel held that a program devised by a Texas Justice of the Peace under which his court sessions are opened with a prayer from a volunteer chaplain does not violate the Establishment Clause. Judge Higginson, joined by Judge Graves, filed an opinion dissenting from the denial of an en banc rehearing. They said in part:
None of the history cited by our court contemplates a judicial command “to stand and bow” for prayer, much less under threat of retaliation. At best, our court digs up “scattered evidence” that some nineteenth- and twentieth-century courts started with a prayer. Along with other evidence that prayers have been said and God invoked in courtrooms, our court thinks this is enough to prove that “courtroom prayer is consistent with a broader tradition of public, government-sponsored prayer.” I agree with the dissenting panel opinion that this history is too thin to justify that conclusion, but I would add that our court’s answer is pitched at the wrong level of generality.... [T]he question is whether “history shows that the specific practice is permitted,” not whether a general practice is permitted.