United States District Court, S.D. Texas, Houston Division
FREEDOM FROM RELIGION FOUNDATION, INC. and JOHN ROE, Plaintiffs,
WAYNE MACK and WAYNE MACK, Defendants.
MEMORANDUM OPINION AND ORDER
Kenneth M. Hoyt United States District Judge
before the Court is Justice of the Peace, 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.
plaintiffs claim that Judge Mack's courtroom prayer
practice violates the U.S. Constitution. 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.
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
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
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.
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.
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
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.
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.
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 ...