Courtroom Prayer Case Poses Dilemma to Challengers on Appeal

Welcome back to Opening Argument, a reported column where I dig into interesting legal questions and controversies. Today: a look at courtroom prayer and Supreme Court precedent.

The US Court of Appeals for the Fifth Circuit last month said a Texas judge can lawfully open his court proceedings with a prayer.

It was a decision that seemed to stretch Supreme Court precedent in a way Justice Samuel Alito in 2014 said would be “far astray” from what the court intended in allowing town boards to start their meetings with a sectarian prayer.

That tension gives the Freedom From Religion Foundation, and the attorney who challenged the judge’s prayer practice, a good argument for a high court appeal. There’s just one problem: the Supreme Court isn’t the same court it was eight years ago.

When the justices upheld sectarian prayer at town board meetings in Town of Greece v. Galloway, it split 5-4 between conservative and liberals. But the makeup has since shifted farther to the right. Conservatives now hold a 6-3 majority after Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsburg.

“We’re trying to assess how to move forward,” said Ayesha Khan, a partner at the Potomac Law Group who represented the FFRF and the unnamed attorney who challenged the courtroom prayer.

Their case centers on Texas Justice of the Peace Wayne Mack, who they allege is violating the US Constitution’s Establishment Clause by opening his courtroom proceedings with a prayer. The prayer is given by chaplains who are part of the Justice Court Chaplaincy Program Mack created.

Hiram Sasser, executive general counsel at the First Liberty Institute, which represented Mack, said the judge went out of his way to recruit a wide variety of religious leaders into the program, which also allows the chaplains to volunteer to lead Mack’s courtroom in prayer.

People of different faiths participate in the prayer on a rotational basis so the court isn’t favoring one religion, Sasser said. FFRF notes 90% of the chaplains in the program represent Protestant Christian congregations.

In dissenting from the Town of Greece decision, Justice Elena Kagan suggested courtroom prayer is one kind of government-sponsored prayer the court would agree crosses the constitutional line. She gave the hypothetical of a judge starting a trial by asking the litigants to rise for a prayer. In a concurring opinion, Alito said nobody should read Kagan’s “highly imaginative hypotheticals” as a warning of what’s to come. “Nothing could be farther from the truth,” he said.

But Khan said the Fifth Circuit found a way to basically ignore the court and twist its decision.

In Kagan’s hypothetical, the prayer happens after the court is called ‘to order,’ and the judge ‘instructs’ the litigant to rise” making it different from Mack’s practice, the appeals court said.

There is a notice on the courtroom door to let litigants know their attendance during the prayer is optional, but the attorney who sued Mack said he felt coerced to stay or risk prejudicing his clients. Citing Town of Greece, the Fifth Circuit rejected his claim that the proceedings are impermissibly coercive, ruling the ceremonies are less coercive than other forms of constitutional public prayer.

Fifth Circuit Judge Jerry Smith said in the court’s decision that “the plaintiffs have no evidence suggesting that ‘coercion is a real and substantial likelihood.’”

Paul Finkelman, a Rydell Visiting Professor at Gustavus Adolphus College in Minnesota, said the appeals court improperly applied Supreme Court precedent.

“There’s a huge difference between a courtroom and a legislature,” he said. “First, a legislature is in essence political. A legislature in many ways has the power to make decisions based on things other, I suppose, than fact. A legislature isn’t taking an oath to be neutral.”

In addition to being less coercive, the Fifth Circuit said the Mack’s practice is consistent with the tradition of public, government-sponsored prayer, after finding convincing evidence that courtroom prayers were common during the founding-era. That reasoning may make an appeal at the Supreme Court even harder to win.

The Supreme Court repeatedly pointed to history and tradition last term as the basis for its decisions to strike down the constitutional right to abortion, expand gun rights, and further relax the separation between church and state.

“There is a fear that the US Supreme Court on many fronts wants to ossify Constitutional jurisprudence to a time when virtually the entire country was white and Christian,” Khan said.

The Fifth Circuit, she said, just took what the Supreme Court did with history and tradition and ran with it. Now Khan has to decide whether to risk an appeal that could end up badly for her clients.

Know of an issue worth writing about? Email me at lwheeler@bloombergindustry.com. To read more Opening Argument, sign up for our newsletter The Brief. You’ll get Bloomberg Law’s top stories delivered free to your Inbox every weekday afternoon and you’ll catch this column when it runs.