Freedom from Religion Found., Inc. v. Mack

• Decision Date: 20 May 2021
• Docket Number: CIVIL ACTION NO. 4:19-CV-1934
• Parties: FREEDOM FROM RELIGION FOUNDATION, INC. and John Roe, Plaintiffs, v. Wayne MACK, in his personal capacity and in his official capacity on behalf of the State of Texas, Defendant.
• Court: U.S. District Court — Southern District of Texas

540 F.Supp.3d 707

FREEDOM FROM RELIGION FOUNDATION, INC. and John Roe, Plaintiffs,

v.Wayne MACK, in his personal capacity and in his official capacity on behalf of the State of Texas, Defendant.

CIVIL ACTION NO. 4:19-CV-1934

United States District Court, S.D. Texas, Houston Division.

Signed May 20, 2021

Samuel Troxell Grover, Elizabeth Cavell, Freedom From Religion Foundation, Inc., Madison, WI, Ayesha N. Khan, Americans United, Washington, DC, for Plaintiffs.

Allyson N. Ho, Bradley George Hubbard, Elizabeth Ashley Kiernan, Matthew Scorcio, Bennett Rawicki, Gibson Dunn & Crutcher LLP, Dallas, TX, Michael Dan Berry, First Liberty Institute, Plano, TX, John Ehrett, Gibson Dunn & Crutcher LLP, Washington, DC, for Defendant.

Wayne Mack, Pro Se.

MEMORANDUM OPINION AND ORDER

Kenneth M. Hoyt, United States District Judge

I. INTRODUCTION

Before the Court are competing motions for summary judgment and responses, reflected in the plaintiffs’, Freedom From Religion Foundation, Inc. ("FFRF") and John Roe ("Roe"), motion for summary judgment [Dkt. 61], the defendant's, Wayne Mack, motion for summary judgment [Dkt. 59], the parties’ respective responses [Dkt.’s 64 and 65], and their respective replies [Dkt.’s 69 and 71]. In addition, the defendant has filed a statement of undisputed facts [Dkt. 60], to which the plaintiffs filed a response [Dkt. 67]. The plaintiffs also filed a statement of undisputed facts [Dkt. 61-3], to which the defendant filed a response [Dkt. 64].

After having carefully considered the parties’ submissions, the record, and the applicable law, the Court determines that the plaintiffs’ motion for summary judgment should be GRANTED , and the defendant's motion for summary judgment should be DENIED .

II. BACKGROUND

The plaintiff, Roe, is an attorney who operates a law practice, primarily involving landlord-tenant disputes, in Montgomery County, Texas. The plaintiff, FFRF, is a non-profit membership organization, of which Roe is presently a member.¹ The plaintiffs have sued the defendant, Wayne Mack, a Justice of the Peace in Precinct 1 of Montgomery County, Texas, both individually and in his official judicial capacities. He has served in that position since May 1, 2014, and presides in two courtrooms, one in Willis, Texas and another in Montgomery, Texas. Until June 2017, Roe appeared regularly in the defendant's courtroom in the course of his practice.

The defendant's duties as Justice of the Peace also involve acting as the county coroner. In June 2014, the defendant created a "Chaplaincy Program" (the Program) to, as he describes it, "assist the Court system and Law Enforcement with grieving families on tragic death scenes or death call notifications." He also developed a Justice Court Chaplaincy Handbook (the Handbook) to explain the mission of the Program and the responsibilities of its participants. He describes the Program's purpose as threefold: (a) "to provide care and counseling to first responders and their families; (b) to comfort and provide resources to victims; and, (c) to assist law enforcement in notifying next of kin and providing comfort to grieving families." The defendant handed out a copy of the Handbook at a training session that he hosted for Program participants in September 2014. At that time, and through September 2015, the Handbook's first page included the image of a badge with a cross on it, appearing as follows:

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These earlier versions of the Handbook also stated that "[t]he role of the JCC Chaplain is to be a representative of God[,] bearing witness to His hope, forgiving and redeeming power." The Handbook version in use as of August 7, 2018, includes no such image and states that "[t]he role of the JCC Chaplain is to be a representative of hope, forgiveness, and compassion."

In the beginning, to become a volunteer chaplain in the Program, an individual was required to complete at least one training session held by the defendant. However, after 2014, the Program "grew and sustained [itself] naturally without any further work to spread the word." The defendant's staff kept and continually updated a list of volunteer chaplains. According to the Program List, from November 2017 to October 2020, between 75 and 100 participants volunteered for the Program. During this period, approximately 90 percent of the volunteer chaplains represented surrounding Protestant Christian congregations, but the List also included one representative each from the Catholic, Buddhist, Hindu, Mormon, and Jewish faiths, as well as at least two Muslim representatives.

From the Program's inception, the defendant invited volunteer chaplains to participate in a ceremony that opened his courts’ proceedings. A court employee would send an email to all the chaplains, advising them of available court session dates. In the defendant's telling, his purpose was to "acknowledge these people of the faith community that [were] giving their time, talent, resources to be on call to go to these tragic scenes." During the court ceremony, the chaplains typically delivered a prayer of their choosing. In later testimony, the defendant added that the ceremony's purpose was to "solemnize the proceedings in his courtroom" and "set[ ] [the] tone ... [f]or everybody that's in the courtroom" by "speaking to the fact that this is a court of law" and the "rule of law will be applied and respected." He also testified that "a moment of silence or prayer often helps people center themselves emotionally in what can be an emotionally charged atmosphere." In subsequent proceedings, responding to a complaint before the Texas State Commission on Judicial Conduct, the defendant described an annual "Prayer Breakfast" that he organized as relating to "a campaign promise made and fulfilled, to open my court with prayer." In a 2015 letter to his supporters, the defendant defended his opening ceremony, stating his view that "the [Chaplaincy] program that I wanted in place was a program that God wanted in place, for His larger purpose."

Until approximately the end of 2014, the defendant initiated court proceedings by describing the Program, introducing the volunteer chaplain, and then inviting all present to stand for an invocation, or prayer, by the chaplain. The defendant announced that attendees could leave if they preferred not to be present during the opening ceremony, and that their case would not be affected. After the prayer, those who remained would recite the United States and Texas Pledges of Allegiance. The defendant would then take his seat, and after those who had absented themselves returned, the clerk would call the first case.

In September 2014, FFRF wrote to the defendant, objecting to his opening ceremony on the grounds that it violated the Establishment Clause of the federal Constitution. The defendant then changed certain aspects of the ceremony. Starting in approximately January 2015, he had installed signs outside his courtroom and a television screen at the back of the courtroom, both of which display the following text:

It is the tradition of this court to have a brief opening ceremony that includes a brief invocation by one of our volunteer chaplains and pledges to the United States and Texas state flag.

You are not required to be present or participate. The bailiff will notify the lobby when the court is in session.

According to the defendant and another courtroom employee, the bailiff now announces the above instructions prior to the defendant's entry into the courtroom, at which point attendees can exit the courtroom if they wish. However, the plaintiffs cite the declaration of Steve Smith, a former litigant in the defendant's court, stating that, during his hearing in January 2020, "[t]here was no opportunity to leave between the time that Judge Mack entered the courtroom and when the chaplain began praying[.]" The courtroom doors remain open on days when multiple bailiffs are present, but closed when only one bailiff is present. When the doors are closed, attendees can open the doors from within by pressing a button located in the courtroom.

Currently, as the defendant enters the courtroom, the bailiff instructs all attendees to rise. While everyone remains standing, the defendant briefly describes the Program, introduces the attending chaplain, and thanks the chaplain for their service to the Program. The attendees remain standing until the volunteer chaplain completes the prayer, at which point the defendant instructs them to be seated. Whether the defendant faces the attendees during the prayer is also disputed.² But the defendant testified that, once court is in session, he can observe whether a person enters the courtroom. In both of the defendant's courtrooms, if the doors are closed and court proceedings have begun, a bailiff must open the doors for anyone entering or re-entering the courtroom.

According to deposition testimony from the defendant's clerk, an attending chaplain almost always delivers a prayer of some kind. During the ten times that Roe appeared in the defendant's courtroom, between August 2015 and July 2017, a Christian chaplain delivered a Christian prayer. The record does not contain evidence that, during any opening ceremony, any volunteer chaplain ever expressly encouraged conversion to his or her faith. Roe also "has no firsthand knowledge of any specific action taken by [the defendant] in response to anyone's participation" in the opening ceremony but "has reason to believe that he would risk bias if he were to absent himself from the courtroom" during the opening ceremony.³ Regarding his hearing, in January 2020, declarant Smith states that there was "no question" in his mind that the defendant's observation of him during the ceremony "influenced [the defendant's] demeanor while hearing" his case and that the defendant "acted unprofessional and hostile" toward him.

Feeling that he could not refuse to participate in the opening ceremony without prejudicing his clients, in July 2017, Roe ceased...