In Freedom From Religion Foundation v. Mack, (5th Cir., Sept. 29, 2022), the U.S. 5th Circuit Court of Appeals held that a program devised by a Justice of the Peace under which his court sessions are opened with a prayer from a volunteer chaplain does not violate the Establishment Clause. The court said in part:
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 ceremony—and 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.” Town of Greece v. Galloway, 572 U.S. 565, 590 (2014).
Want of evidence showing coercion dooms their case. In holding otherwise, the district court disregarded the Supreme Court’s most recent guidance.
First Liberty Institute issued a press release announcing the decision. The 5th Circuit had previously granted a stay which allowed the invocations to go on while the case was on appeal.
UPDATE: This was a 2-1 decision. Judge Jolly filed an opinion dissenting in part. He argued that the case needed to be sent back to the district court for additional fact finding. He criticized the majority's opinion, saying in part:
Plaintiffs have produced considerable evidence showing that Judge Mack conducts his opening prayer and other religious ceremonies “in such a way as to oblige the participation of objectors.” ... For the majority to find that there is no evidence of coercion, suggests, in my opinion, willful blindness and indisputable error....
[D]espite digging into the history books, the majority’s opinion comes up dry on historical precedent.... [And] the majority inaccurately presents recent Supreme Court precedent.
