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Freedom From Religion Foundation, Inc. v. Mack

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

January 13, 2020

WAYNE MACK and WAYNE MACK, Defendants.


          Kenneth M. Hoyt United States District Judge


         Pending before the Court is Justice of the Peace[1], Judge Wayne Mack's (Judge Mack), motion to dismiss (Dkt. No. 12) and the plaintiffs', Freedom From Religion Foundation, Inc. (FFRF) and John Roe (“Attorney Roe” or the “plaintiffs”) response in opposition to the motion (Dkt. No. 17) and Judge Mack's reply in support of his motion (Dkt. No. 19). After carefully considering the motion, response and reply, the Court concludes that the motion should be DENIED.


         The plaintiffs claim that Judge Mack's courtroom prayer practice violates the U.S. Constitution.[2] Attorney Roe is a self-employed attorney practicing in Montgomery County, Texas. He has appeared in Judge Mack's courtroom at least 20 times on behalf of clients. The plaintiff claims that during each appearance in Judge Mack's courtroom he was exposed to a courtroom prayer practice that violates the Establishment Clause of the First Amendment.

         According to the plaintiffs, there was an original courtroom prayer practice that has since been revised. The original courtroom prayer program began in 2014, commencing with Judge Mack entering the courtroom and announcing that everyone should remain standing for a prayer. Judge Mack would then state, if any of you are offended by this procedure you can leave and wait in the hallway and your case will not be affected. Judge Mack would spend a few minutes describing his Justice Court Chaplaincy Program. He then introduced the visiting pastor/chaplain for the day. The guest chaplain would stand and read from the Holy Bible and deliver a sermon for five to eight minutes. After that, he would request that everyone bow their heads for prayer. The plaintiffs allege that during the prayer, Judge Mack did not bow his head, but observed those in the courtroom. Following the prayer, the Pledge of Allegiance is recited and then the docket is called.

         Later, Judge Mack revised the program. After the docket is called, the bailiff or court clerk gives a brief introductory statement that a prayer follows and that anyone desiring to leave may leave the courtroom. They were assured that leaving the courtroom would not affect the outcome of their cases. However, the invitation to leave has not been consistently included. After the announcement, Judge Mack enters the courtroom and while everyone remains standing, gives a brief explanation of the Justice Court Chaplaincy Program and introduces the pastor/chaplain for the day who wears an official badge issued by Judge Mack. Then the chaplain leads a prayer.

         The plaintiffs claim that everyone is asked to participate, or show obeisance, by bowing their heads. During the introduction and chaplain-led prayer, the courtroom doors are magnetically locked. To exit, a person must push a button. To reenter someone inside the courtroom has to open the door. After the proceedings, Judge Mack is in a position to note who enters the courtroom.

         Attorney Roe, who is nonreligious, has declined to represent clients in order to avoid appearing in Judge Mack's courtroom. He objects to a government official telling him when or how to pray. He maintains that Judge Mack's prayer practice is not in keeping with the ceremonial proceedings exercised by the Texas Supreme Court or the U.S. Supreme Court, and is otherwise unsupported by historical judicial practices. He seeks declaratory relief regarding this matter.

         Judge Mack asserts that the plaintiffs' claim should be dismissed pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, because the Court lacks subject-matter jurisdiction on two bases. First, he asserts, that the plaintiffs lack standing and have failed to plead an injury in fact. Second, he asserts, even if the Court determines that the plaintiffs have standing, the prayer program is constitutional and their claim should be dismissed.

         The plaintiffs maintain that they have satisfied the standing requirements. Moreover, they assert that their claim is valid as they have demonstrated “direct, unwelcomed contact” with a practice that is unconstitutional. Further, Attorney Roe claims that he has suffered financial harm in that he has not been able to represent clients in Judge Mack's courtroom without either engaging in his prayer program or absenting himself during the program.


         Rule 12(b)(1) permits the dismissal of an action for the lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). “If [a federal] court determines at any time that it lacks subject-matter jurisdiction, [it] must dismiss the action.” Fed.R.Civ.P. 12(h)(3); see also Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 880 n.3 (3rd Cir. 1992). Since federal courts are considered courts of limited jurisdiction, absent jurisdiction conferred by statute, they lack the power to adjudicate certain claims. See, e.g., Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994)). Therefore, the party seeking to invoke the jurisdiction of a federal court carries “the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745, 748 (5th Cir. 2009) (citing New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 327 (5th Cir. 2008)); see also Stockman, 138 F.3d at 151.

         When evaluating jurisdiction, “a [federal] court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” MDPhysicians & Assoc., Inc. v. State Bd. of Ins., 957 F.2d 178, 181 (5th Cir. 1992). In making its ruling, a court may rely on any of the following: “(1) the complaint alone, (2) the complaint supplemented by undisputed facts evidenced in the record, or (3) the complaint ...

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