In a legal opinion, Texas' attorney general said an opening prayer before a court proceeding and a voluntary chaplaincy programme are constitutional and do not violate the Establishment Clause.
Attorney General Ken Paxton issued the legal opinion based on requests by Texas Lt. Governor Dan Patrick and executive director Seana Willing of the State Commission on Judicial Conduct.
The case stemmed from the complaint filed by the Freedom From Religion Foundation (FFRF) against Judge Wayne Mack in 2015 before the state commmision regarding his practice of allowing volunteer chaplains to open courtrooms sessions with prayer and his Justice Court Chaplaincy Program which allows chaplains to be the first responders to deaths in the county and provide counseling to mourners.
In its decision, the state commission dismissed the complaint against Mack but "strongly cautioned" him to end the opening prayers and the chaplaincy programme.
"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,'" Paxton wrote in his opinion. "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 Gallowaysuch that the practice does not violate the Establishment Clause."
Paxton also said "a court would likely conclude that the volunteer chaplain program you describe, which allows religious leaders to provide counseling to individuals in distress upon request, does not violate the Establishment Clause."
He said the U.S. Supreme Court and the Texas Supreme Court "have longstanding practices of opening their sessions with such an invocation."
The Supreme Court, Paxton said, explained that the recitation of such phrase to open court sessions is like a legislative prayer in that it is "part of our heritage and tradition, [and] part of our expressive idiom."
He said the High Court would not continue the practice "if it thought doing so violated the Constitution. Courts do not violate the Establishment Clause by opening court proceedings with a statement such as, 'God save the State of Texas and this Honorable Court.'"
"This is a total victory for Judge Mack and for the citizens of Texas," said Kelly Shackelford, president and CEO of First Liberty Institute, which represented Mack in the case.
Judge Mack praised the attorney general's opinion.
"This has been a long and arduous process. I'm thankful for Lieutenant Governor Patrick's request for an opinion on this important issue and that Attorney General Paxton made clear that the Constitution permits judges to invite volunteer chaplains to open sessions of court with prayer. This is a clear victory for religious liberty," he said.
