In Freedom From Religion Foundation, Inc. v. Mack, (5th Cir., July 9, 2021), the U.S. 5th Circuit Court of Appeals granted a stay pending appeal of a Texas district court's declaratory judgment order which concluded that a a Justice of the Peace's program under which court sessions are opened with a prayer from a volunteer chaplain violates the Establishment Clause. (See prior posting.) Attendees may to step out of the courtroom before the ceremony if they wish. The appeals court held that official capacity claims under 42 USC §1983 are barred, and that FFRF's individual capacity claims are likely to fail. The court said in part:
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. See Marsh v. Chambers, 463 U.S. 783 (1983). 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....
It’s true that Marsh and Town of Greece involved a legislature’s chaplains, not a justice of the peace’s chaplains. But it’s unclear why that matters, given the abundant history and tradition of courtroom prayer.
Washington Times reports on the decision.
