Texas Attorney General Ken Paxton has issued an opinion stating it does not violate the Establishment Clause to open a court session with the statement “God save the State of Texas and this Honorable Court” or to open court with a prayer, or have a volunteer chaplain program to facilitate those prayers. An atheist group from Wisconsin had complained about the practice.
The Wisconsin-based Freedom from Religion Foundation filed a complaint with the State Commission on Judicial Conduct in mid-October of 2014 complaining that the practice was “blatantly unconstitutional.”
The issue arose when a justice of the peace in Montgomery County, Texas, Judge Wayne Mack, established a volunteer chaplain program. He invited “all religious leaders of any faith in [his county] to participate.”
Besides praying before court proceedings, other volunteer opportunities in the clergy chaplain program included the opportunity to provide comfort and counsel to individuals. The JP also serves as the coroner and is often a first responder where there is a death.
Lieutenant Governor Dan Patrick and Seana Willing, Executive Director of the State Commission on Judicial Conduct (“Commission”) requested the attorney general opinion. As noted on the Office of Attorney General (OAG) website, the Texas Constitution, and the Texas Government Code grants the attorney general the authority to issue attorney general opinions. It is a non-binding legal opinion but is “a written interpretation of existing law.”
The Commission had “strongly cautioned the Justice of the Peace against this chaplain program and his current courtroom prayer practice.” The AG was asked to issue an opinion on the “constitutionality of those and similar practices.” The AG opinion, KP-0109, stated that the analysis pinned on the Establishment Clause.
The Establishment Clause in the First Amendment to the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Citing case law, the attorney general opinion states that the Fourteenth Amendment imposes those limitations “on the legislative power of the States and their political subdivisions.”
The AG noted that “Both the United States Supreme Court and the Texas Supreme Court have longstanding practices of opening their sessions with [the] invocation” “God save the United States [or the ‘State of Texas’] and this Honorable Court.” The opinion states, “The Court has explained that the recitation of this type of phrase at the opening of court sessions is like legislative prayer in that it is ‘part of our heritage and tradition, [and] part of our expressive idiom.'”
Likewise, quoting case law, “‘The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.'” The United States Supreme Court has upheld the practice of opening a town board meeting with prayer, and religious leaders of any faith are invited to deliver a prayer at the proceedings. Moreover, the public is not required to participate in the prayers. The 2014 U.S. Supreme Court opinion of Town of Greece v. Galloway recited in the AG opinion said, “Even those who disagree as to religious doctrine may find common ground in the desire to show respect for the divine in all aspects of their lives and being. Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith.”
The Attorney General addressed the question raised by the State Commission on Judicial Conduct whether or not it was proper for courts, unlike legislative and town bodies, to engage in the practice. The nation’s highest court found that “legislative bodies do not engage in impermissible coercion by exposing constituents to prayer they would rather not hear and in which they need not participate.” The AG quoted the Court and analyzed that the Supreme Court would “likely apply the same analysis to courtroom prayer to open proceedings.”
The volunteer chaplain program makes clergy available “upon request” to “provide counsel to persons in distress.” The opinion reasons that this is similar to the hiring of chaplains in county hospitals, prisons, and military establishments, but notes that those individuals are even paid with public funds. In Montgomery County, members of the clergy are volunteers. Although there is no case law directly on point that involves a volunteer clergy program he notes, the AG reasons that the practice would be upheld as constitutional upon challenge.
In a statement obtained by Breitbart Texas, Lieutenant Governor Dan Patrick said “In response to my request [for an attorney general opinion], General Paxton issued an opinion affirming the constitutionality of these programs. This is a sure victory for religious liberty in Texas.” He added, “This opinion goes a long way in providing the necessary clarity to Judge Mack, and judges throughout Texas, of constitutionally appropriate court room prayer and volunteer-led chaplaincy programs. As Lt. Governor, I will continue to fight for religious liberty across the state.”
Jonathan Saenz with Texas Values told Breitbart Texas, “We are thankful to our Texas leaders, Attorney General Ken Paxton, and Lt. Governor Dan Patrick, for faithfully defending invocation prayers and chaplain ministry. These practices have been in place since the beginning of our nation’s founding.”
Chelsey Youman, Counsel for First Liberty, told Breitbart Texas, “All three branches of government have a long history of recognizing the role religion plays in society. We are grateful that the Attorney General’s opinion reaffirms the constitutionality of Judge Mack’s courtroom invocation and volunteer chaplaincy program.” She added, “Both the United States and Texas Supreme Courts open their court sessions with prayer. Judge Mack is simply following a well-established tradition in the American courtroom. Not only that, but since the Texas Attorney General confirmed Texas judges can open courtroom sessions with an invocation, this gives a strong indication that the Wisconsin group does not have a solid leg to stand on.”
Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served as a prosecutor and associate judge in Texas. Follow her on Twitter @LanaShadwick2.
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