By Cameron Langford, Courthouse News Service

(CN) — A Texas judge is not violating federal law by letting volunteer chaplains open court with a prayer, the state's attorney general said in an advisory opinion (pdf).

Wayne Mack is a justice of the peace in Montgomery County, home to wooded rural neighborhoods that are succumbing to the northward march of development from sprawling Houston.

Montgomery County doesn't have a coroner. Its justices of the peace serve that role and are called to the scene of fatal accidents.

Mack found it difficult to assess an accident scene while at the same time tending to distraught family members of the deceased, so he recruited a group of volunteer chaplains, according to a request for an advisory opinion on the legality of Mack's courtroom prayer practices that Texas Lt. Gov. Dan Patrick submitted to Attorney General Ken Paxton in February.

Mack asks the family on scene if they want a volunteer chaplain to come counsel them, and sends for one if they request it, according to Patrick, an outspoken Christian who hosts a conservative radio talk show.

To reward the chaplains for their unpaid counseling services, Mack invites them to say a brief prayer during the opening ceremonies of his courtroom proceedings, according to Patrick's Feb. 16 opinion request.

Mack said Tuesday in a phone interview that more than 50 chaplains representing 30 different faiths and denominations are involved in the program, including a rabbi and Hindu elders.

Notably absent is a Muslim imam, but Mack said he's working on bringing one into the fold.

"When we say we've extended the invitation to every faith in our community, we have," he said.

The judge said his court is very busy and doesn't always have time to hold an opening ceremony before hearings, but any time they have the ceremony a chaplain is available.

Mack said he's found the inclusion of prayers in his opening ceremonies often eases the tension of those unfamiliar with court procedure.

"We've had nothing but a positive response from our community. In fact today in court I had a plaintiff and defendant who both thanked me for the opening ceremony because they were nervous about being in court and they were concerned about how it was going to go," he said. "And they both stated that when we had our opening ceremony it gave them the peace of mind that we were going to be fair in our judicial decisions. And that's almost a daily event."

Mack caught the attention of the Freedom from Religion Foundation, or FFRF, in the fall of 2014 after a litigant who appeared before him complained to the Wisconsin-based nonprofit that the judge was sanctioning prayer in his courtroom.

"On October 10, 2014, FFRF contacted the Texas State Commission on Judicial Conduct to complain about Judge Mack's practice of opening court sessions with prayer," the foundation's attorney Sam Grover wrote in an April 21 brief to Paxton's office. "Shortly thereafter, a second complainant, an attorney who was obligated to appear before Judge Mack on a number of cases, contacted FFRF to object to the courtroom prayer practice. Both complainants consider the courtroom prayers to be an endorsement of Christianity."

The complaint prompted the state judicial conduct commission to call a hearing, during which its members questioned Mack about his chaplain program and courtroom prayers. The commission ultimately dismissed the complaint.

The commission did, however, send Mack a letter strongly urging him to discontinue the chaplain counseling program and the courtroom prayer.

The commission's warning letter moved Patrick, who is arguably the second most powerful politician in Texas behind the governor, to ask Paxton for an opinion of Mack's chaplain programs.

Patrick wrote in his opinion request that the courtroom prayers do not raise the possibility they will affect Mack's treatment of litigants because Mack closes his eyes during the incantations, so he can't see anyone's reaction to them, after his bailiff announces, "Your participation [in the opening ceremony] will have no effect on your business today or the decisions of this court." (Brackets in original).

Patrick cites Town of Greece v. Galloway (pdf), a 2014 U.S. Supreme Court decision in which the justices ruled 5-4 that the town's practice of having volunteer chaplains open meetings with a prayer did not violate the First Amendment's Establishment Clause.

Patrick also notes in his opinion request that Texas Supreme Court justices bow their heads for a brief prayer during the court's opening ceremonies.

"The only apparent distinction is that the prayer given before the Texas Supreme Court, 'God save the state of Texas and this honorable court,' is of fixed content while the prayers given by the chaplains before Judge Mack's court may vary in their content as each chaplain so decides," Patrick wrote.

Paxton agreed with Patrick, writing Monday in an advisory opinion, "A justice of the peace does not violate the Establishment Clause by opening a court session with the statement 'God save the state of Texas and this honorable court.'"

"A court would likely conclude that a justice of the peace's practice of opening daily court proceedings with a prayer by a volunteer chaplain as you describe is sufficiently similar to the facts in Galloway such that the practice does not violate the Establishment Clause," the attorney general wrote.

Paxton's opinions are not legally binding, but are instead his written interpretations of the law.

Grover says if the case were to go before a federal judge, he's certain Mack's courtroom prayers would be found unconstitutional.

"FFRF is confident that if we were to bring this case before an actual federal court in order to determine whether it's legal or not that we would win in that situation," Grover said in an interview. "Judge Mack's courtroom practice is historically unprecedented and not supported in any way by existing case law. The attorney general's opinion is merely advisory and bends over backwards to find the practice legal."

In the foundation's brief to Paxton's office, Grover says Patrick is wrong to characterize the invocation before Texas Supreme Court proceedings as a prayer and to put the prayers in Mack's courtroom in the same category.

"In reality, these instances of 'ceremonial deism'—brief, historically ubiquitous, non-prayers with minimal religious content—can and have been distinguished from courtroom prayer," Grover wrote, adding that the national motto "In God We Trust" is another example of "ceremonial deism."

The foundation's brief cites North Carolina Civil Liberties Foundation v. H. William Constangy, in which the Fourth Circuit ruled in 1991 that Judge Constangy should be barred from opening court with a prayer because it violates the Establishment Clause.

But Mack's attorney, Chelsey Youman with First Liberty Institute, a Dallas-area firm that advocates for religious freedom, says Paxton's opinion clarifies that religion does have a place in the courtroom.

"We have a long-standing tradition in our country of each government section be it legislative or the courtroom, the U.S. Supreme Court and the Texas Supreme Court, all acknowledging the important role that religion plays in the public realm. We were very confident the law was on our side. Now that's been confirmed," Youman said Tuesday during a conference call with Mack and Courthouse News.

To Learn More:

The Constitutionality of a Volunteer Justice Court Chaplaincy Program and Opening Daily Judicial Proceedings with Prayer (Attorney General of Texas) (pdf)

Arizona Legislators Say Atheist’s Prayer Not Good Enough; Bring in Baptist Pastor (by Bob Christie, Associated Press)

In Wake of Supreme Court Prayer Ruling, Virginia Official Urges Banning of Non-Christian Prayers at County Meetings (by Noel Brinkerhoff, AllGov)

U.S. Supreme Court Allows Sectarian Prayers at Government Meetings (by Noel Brinkerhoff and Danny Biederman, AllGov)

Christian Prayers at City Council Meetings Supported by Obama Administration before Supreme Court (by Noel Brinkerhoff, AllGov)