In 2014, Wayne Mack was elected a judge in Montgomery County, Texas. As part of his responsibilities in dealing with troubled, grieving, and distraught families, he established a program for ministers to serve as volunteer chaplains, who would make themselves available to those families. Some sixty clergy from thirty different denominations and faiths currently participate in the program. Mack has observed that the clergy represent “every mosque, temple and synagogue” in the area.1 Judge Mack also allows different clerics to open his court sessions with prayer.

The Freedom From Religion Foundation (FFRF) of Madison, Wisconsin, learned of the prayers, objected, and filed a complaint with the Texas State Commission on Judicial Conduct. This complaint was dismissed. In 2016, FFRF filed another challenge, and the Texas Attorney General issued an opinion upholding Mack’s practice as constitutional. The Wisconsin group has since found a local attorney and residents to serve as plaintiffs, and in 2019 they filed suit in federal court objecting to the prayers in Judge Mack’s courtroom. They allege a violation of the First Amendment’s declaration that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof,” which they interpret as requiring a religion-free public square. FFRF claims that:

Judge Mack’s courtroom-prayer practice unambiguously and unnecessarily endorses religion in general and Christianity in particular, and places the State’s imprimatur on religion in general and Christianity in particular, in violation of the Establishment Clause of the First Amendment to the U.S. Constitution.2

Is Judge Mack’s practice of courtroom prayer a violation of the Constitution? To answer this question, we must first consider how the Constitution should be interpreted. More narrowly, we need to examine how the modern US Supreme Court has said the Establishment Clause should be interpreted.

How Should the Constitution Be Interpreted?

America’s Founders believed that the Constitution, and other laws, should be interpreted in light of their original meaning. For instance, President Thomas Jefferson recalled to Supreme Court Justice William Johnson the cardinal maxim of constitutional interpretation:

On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.3

James Madison, often called the “Father of the Constitution,” agreed:

[I] entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution.4

And James Wilson, an early Supreme Court Justice whose role in drafting the Constitution was on a par with that of Madison, likewise affirmed:

The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.5

Justice Joseph Story concurred. The youngest Justice ever appointed to the Court, in his 34 years on the bench he authored 286 opinions, of which 94 percent were recorded as the official Court position.6 Called the “foremost of American legal writers,”7 he affirmed:

The first and fundamental rule in the interpretation of all instruments [documents] is to construe them according to the sense of the terms and the intention of the parties.8

The Supreme Court and the Establishment Clause

Numerous times throughout the modern era the US Supreme Court has stated that the First Amendment must be interpreted according to its original intent—that early historical precedent is seminal in establishing constitutional understandings. As Justice Hugo Black (writing for the majority) affirmed in Everson v. Board of Education (1947), the “meaning and scope of the First Amendment” must be understood in “light of its history and the evils it was designed forever to suppress.”9 Justice Wiley Rutledge and three others dissented from the majority’s holding in that opinion, but they, too, agreed that the First Amendment must be understood in light of the Founders’ views.10 (In subsequent Establishment Clause decisions over the past 75 years, the vast majority of justices have invoked historical arguments to support their conclusions.11)

For instance, in the Marsh v. Chambers decision upholding the constitutionality of legislative chaplains and prayer (1983), Chief Justice Burger (writing for the majority) drew from a wide range of historical documents and actions to show that legislative chaplains and prayer were widespread in the Founding Era.12 He pointed out that the Founders who drafted and approved the First Amendment had themselves approved legislative prayer and therefore hired legislative chaplains.13 He further acknowledged that the fact states also had a long tradition of engaging in these practices showed that they were “deeply embedded in the history and tradition of this country.”14

In Town of Greece v. Galloway, 572 U.S. 565 (2014), the justices considered the constitutionality of a city council’s practice of opening its meetings with prayer. In his majority opinion, Kennedy observed that the “Court’s inquiry, then, must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures.”15 Drawing heavily from Founding Era practices (and historical practices since then), he concluded that opening a city council meeting with prayer was constitutional. Both the concurring and dissenting16 opinions all made historical arguments to support their respective conclusions. All nine justices affirmed that that history plays a critical role in helping the Court resolve First Amendment Establishment Clause issues.

In the Supreme Court’s 2019 Establishment Clause case, American Legion v. American Humanist Association, 588 U.S. __ (2019), the justices considered the constitutionality of a military war memorial in the shape of a Latin cross.17 By a vote of 7-2, they held that it did not violate the First Amendment. Justice Alito, writing for the majority, noted that recent Establishment Clause cases “look[ed] to history for guidance,”18 specifically pointing to both the Marsh and Galloway cases. He concluded that whenever “categories of monuments, symbols, and practices with a longstanding history follow in that tradition, they are likewise constitutional.”19

A Brief History of Courtroom Prayers in America

There is no question that courtroom prayer is a practice “deeply embedded in the history and tradition of this country.”20 Significantly, America’s Founders were familiar with and supportive of courtroom prayer, and hosts of judges and courts at the state and federal levels continued their practice across subsequent generations.

Consider first the original Supreme Court. It was comprised of six justices—one Chief Justice and five Associate Justices. Three of the six had been drafters and signers of the US Constitution (James Wilson, John Rutledge, and James Blair), and five were members of state conventions that ratified the Constitution (James Iredell, William Cushing, John Jay, John Rutledge, and James Wilson). Additionally, Jay was one of the three authors of The Federalist Papers, which James Madison described as “the most authentic exposition of the heart of the federal Constitution as understood by the body which prepared and the authority which accepted it.”21 Arguably, no other Court in American history had superior constitutional scholars or was in a better position to understand the original meaning of the Constitution and Bill of Rights.

The Judiciary Act of 1789 assigned justices judicial responsibilities over a specific geographic region (circuits). They personally traveled to those areas to impanel grand juries and oversee the federal courts in each jurisdiction. In preparation for these visits, local officials would correspond with the justices to ensure that all necessary arrangements for their visit were made.

For example, on February 24, 1790, federal judge Richard Law of Connecticut inquired of Chief-Justice John Jay which judges would be coming to their region, whether there should be a parade, if special robes for the judges were desired, or “whether they would wish to have a clergyman attend” at the Court sessions.22 To the latter question, Jay responded “The custom in New England of a clergyman’s attending should in my opinion be observed and continued.”23

Prayers in the Federal Courts

Newspaper accounts of the Justices’ visits (occurring after the First Amendment and its religion clauses had been added to the Constitution) confirm that courtroom prayer was part of the official court proceedings:

After the customary proclamations were made and the Grand Jury sworn, a short (though pertinent) charge was given them by his Honor the Chief-Justice [John Jay], when the Throne of Grace was addressed by the Rev. Dr. Haven.24 PORTSMOUTH, NEW HAMPSHIRE, 1791

Court opened on Saturday, May 12, with Chief-Justice John Jay, Associate Justice William Cushing, and Judge John Lowell in attendance….The prayer was made by the Rev. Dr. Parker. His Excellency the Vice-President of the United States [John Adams] was in Court.25 BOSTON, MASSACHUSETTS, 1792

Last Wednesday, the Circuit Court of the United States opened in this town, when the Rev. Mr. Patten addressed the Throne of Grace in prayer, after which the Hon. Judge Wilson delivered to the Grand Jury a charge.26 NEWPORT, RHODE ISLAND, 1793

On Monday last, the Hon. Judge Cushing commenced the lesson of the Circuit Court in this town when he delivered to the Grand Jury an animated charge….Previous to the charge, the Throne of Mercy was addressed in prayer by the Rev. Mr. Eckley.27 BOSTON, MASSACHUSETTS, 1794

On Monday last, the Circuit Court of the United States was opened in this town. The Hon. Judge Paterson [a signer of the Constitution who joined the Court in 1793] presided….After the charge was delivered, the Rev. Mr. Alden addressed the Throne of Grace in an excellent, well adapted prayer.28 PORTSMOUTH, NEW HAMPSHIRE, 1800

Prayers in federal courts continued across the generations

After a solemn and appropriate prayer by the Rev. Mr. Baker, his honor Judge [Joseph] Story delivered to the Grand Jury a highly impressive, eloquent and learned charge.29 RICHMOND, VIRGINIA, 1819

[T]he courtroom was very much crowded at an early hour. About half past ten he [Judge Levi Woodbury] came in with Judge Sprague and took his seat on the right. The court was then opened, a prayer was offered up by the Rev. Mr. Kirk.30 BOSTON, MASSACHUSETTS, 1845

President Hayes nominated a very intelligent Christian gentleman as Judge of this district. At the opening of court at G—- R—–, he telegraphed for me to come and open the court with prayer.…Judge ——- waited for me and took me up to the court-house.… [I asked] God’s blessing upon the Judge, prosecuting attorney, jurors, their town, households, families, companions, children, and youth of the town.31 WESTERN UNITED STATES TERRITORIAL FEDERL COURT, 1877

Court convened; opened with prayer by John Reed.32 UNITED STATES COURT OF CLAIMS, 1896

Following a custom which is observed in many United States [federal] Courts, the New Jersey Circuit was opened yesterday with prayer.33 NEW JERSEY, 1908

Clearly, across the generations prayer in the courtroom was common and not viewed as a violation of any constitutional clause.

Before leaving the federal courts, it is worth noting United States Supreme Court sessions regularly begin with the prayer “God save the United States and this Honorable Court.” The first recorded instance of the Supreme Court opening with this prayer was in 1827 but, as we have seen, other federal courts were already opening with prayer well before that date.34

Prayers in State Courts

Like federal courts, state court sessions also were often opened with prayer. Here are a few representative examples from across the states and generations:

At the opening of the Supreme Court in this city on Tuesday last, the Rev. W. Taylor, pastor of the Roman Catholic Church, was requested to offer up the customary prayer.35 MASSACHUSETTS, 1823

Rev. Dr. Lamson…made the opening prayer in court.36 MASSACHUSETTS, 1846

Judge Howe of Wisconsin opens his courts with prayer.37 WINCONSIN, 1851

The first general term of the Supreme Court of Judicature of the State of Vermont…opened Tuesday morning….The six judges…stood this morning while the Rev. J. H. Worcester opened the Court with prayer.38 VERMONT, 1858

One of the learned justices of the Maine Supreme Court…was holding court at Ellsworth, and according to honored custom called in a local clergyman to open the session with a supplication to heaven.39 MAINE, 1894

[O]ne of our county courts.…employed a Methodist minister to open the court with prayer.40 VERMONT, 1897

Circuit court was opened with prayer at 10 a.m. yesterday.41 SOUTH DAKOTA, 1906

Rev. F. M. Brown, pastor of the First M. E. church will open court with prayer and Judge Howard J. Curtis of Stafford will preside.42 CONNECTICUT, 1912

Dr. R. F. Moore of Sacred Heart church has been invited by County Sheriff Simeon Pease to open with prayer the December court, which will convene at the county court house tomorrow afternoon. Judge Joel H. Reed will be on the bench.43 CONNECTICUT, 1919

Judge Pomeroy called upon the Rev. Charles C. Cole, pastor of the Methodist church, to open court with prayer. It is understood that this will be a regular practice.44 MONTANA, 1921

Dr. J. F. McClure, pastor of the Broadway Methodist church, was called upon by Judge W. F. Freeman to open court with prayer.45 OKLAHOMA, 1923

Judge Emory E. Smith.…always opens his terms of court with prayer.46 MISSOURI, 1934

[A]t Marietta, Georgia, a clergyman was asked to open court with prayer.47 GEORGIA, 1947

Ministers of the Middlesboro Ministerial Association are opening police court everyday with prayer.…Each morning a different minister is assigned.48 KENTUCKY, 1950

Judge Maupin Cummings presided, and asked the Rev. W. R. Whiddon of Huntsville to open court with a prayer.49 ARKANSAS, 1955

Judge Bundy asked clerk George C. Holland to have a minister present when court opened Monday, Feb. 4. The Judge said it was his custom to open court with a prayer.50 NORTH CAROLINA, 1963

Judge Cooper Opens Court With Prayer.…[T]he invocation was delivered by the Rev. V. E. Brown, pastor of Gethsemane Baptist Church.51 NORTH CAROLINA, 1972

Judge William O. Bivens Jr.…called on a courthouse employee, Woodrow Bailey of the Assessor’s Officer, to open court with prayer. Judge Bivens usually opens the session with prayer each day.52 WEST VIRGINIA, 1977

There are many other examples.53 In fact, the practice of courtroom prayer was so common that in 1835, a ministerial handbook provided model prayers for opening a court session,54 and a century later, a 1928 pastoral handbook listed it as one of the expected activities of a minister.55

Conclusion

The First Amendment does prohibit the creation of a national church, but contrary to the claims from Freedom From Religion Foundation, it does not require religion to be scrubbed from the public square. The Establishment Clause, as it was originally understood and subsequently applied across the generations and the centuries, did not prohibit, a judge from allowing clergy from different religions and denominations to open court sessions with prayer. Such practices are “deeply embedded in the history and tradition of this country,”56 and as Justice Alito recently observed, when this is the case, there is a “presumption of constitutionality for longstanding monuments, symbols, and practices.”57 Opening court sessions with prayer is clearly such a practice.

* This article concerns a historical topic and may not be up to date.

Endnotes

1 Debra Cassens, Weiss, “Refiled lawsuit challenges justice of the peace’s courtroom prayer program,” ABA Journal, March 30, 2019, here.

2 “Complaint for Declaratory Relief,” in Freedom from Religion Foundation, Inc. v. Judge Wayne Mack, Case No. 4:19-cv-1934 (Filed May 29, 2019), 17, here.

3 Thomas Jefferson, Memoir, Correspondence, and Miscellanies, From the Papers of Thomas Jefferson, Thomas Jefferson Randolph, editor (Boston: Gray and Bowen, 1830), IV:373, to Judge William Johnson on June 12, 1823.

4 James Madison, Letters and Other Writings of James Madison (Philadelphia: J. B. Lippincott & Co., 1865), III:443, to Henry Lee on June 25, 1824.

5 James Wilson, The Works of the Honourable James Wilson, ed. Bird Wilson (Philadelphia: Bronson and Chauncey, 1804), I:14, from “Lectures on Law Delivered in the College of Philadelphia; Introductory Lecture: Of the Study of the Law in the United States.”

6 Dictionary of American Biography (New York: Charles Scribner’s Sons, 1936), s.v. “Joseph Story.”

7 Dictionary of American Biography (New York: Charles Scribner’s Sons, 1936), s.v. “Joseph Story.”

8 Joseph Story, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray, and Company, 1833), III:383, §400.

9 Everson v. Board of Education 330 U.S. 1, 14-15 (1947).

10 Everson v. Board of Education 330 U.S. 1, 33 (1947).

11 Mark David Hall, “Jeffersonian Walls and Madisonian Lines: The Supreme Court’s Use of History in Religion Clause Cases,” Oregon Law Review (2006) 85:563-613. A slightly revised version of the article was reprinted in the High Court Quarterly Review (2009), 5:109-153.

12 Marsh v. Chambers 463 U.S. 783 (1983), 786-95.

13 Marsh v. Chambers, 787-88.

14 Marsh v. Chambers, 786. To support this proposition, Burger quoted his majority opinion in Walz v. Tax Commissioner: “It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence, and indeed predates it. Yet an unbroken practice of according the exemption to churches, openly and by affirmative state action, not covertly or by state inaction, is not something to be lightly cast aside.” 397 U.S. 664, 678 (1970).

15 Town of Greece v. Galloway, 572 U.S. 565, 9 (2014) (Kennedy, J. majority opinion).

16 Town of Greece v. Galloway, 572 U.S. 565, 9 (2014) (Kagan, J. dissenting).

17 American Legion v. American Humanist Association, 88 U.S. __, 1 (2019), (Ginsburg, J., dissenting).

18 American Legion v. American Humanist Association, 588 U.S. __, 25 (2019), (Alito, J.).

19 American Legion v. American Humanist Association, 28.

20 Marsh v. Chambers, 463 U.S. 783, 786 (1983).

21 James Madison, The Writings of James Madison, ed. Gaillard Hunt (New York: G. P. Putnam’s Sons, 1910), IX:219, to Thomas Jefferson on February 8, 1825.

22 The Documentary History of the Supreme Court of the United States, 1789-1800, ed. Maeva Marcus (New York: Columbia University Press, 1988), II:11.

23 The Documentary History of the Supreme Court, II:13, from John Jay to Richard Law on March 10, 1790.

24 New Hampshire Gazette (Portsmouth), May 26, 1791; Documentary History of the Supreme Court, II:192.

25 Columbian Centinel (Boston), May 16, 1792, 74; Documentary History of the Supreme Court, II:276. For a similar report from 1790, see Boston Gazette (May 10, 1790), in Charles Warren, The Supreme Court in United States History (Boston: Little, Brown, and Company, 1924), 1:59, here.

26 The Documentary History of the Supreme Court, II:412, from the Newport Mercury (Rhode Island) of June 25, 1793.

27 Philadelphia Gazette Of The United States And Daily Evening Advertiser (June 16, 1794), 6, from Boston, June 11, 1794, here

28 United States Oracle (Portsmouth, NH), May 24, 1800; The Documentary History of the Supreme Court, III:436.

29 Richmond Enquirer (November 30, 1819), 4, here.

30 The New Era (October 22, 1845), 2, here.

31 The Presbyterian Monthly Record (Philadelphia: Presbyterian Board of Publication, January 1878), 2, here.

32 Turner v. U.S., United States Court of Claims, April 10, 1916, 51 Ct.Cl. 125, 1916 WL 1115.

33 Trenton Evening Times (April 15, 1908), 12, here.

34 Mark David Hall, Did America Have a Christian Founding: Separating Modern Myth from Historical Fact (Nashville: Nelson Books, 2019), 113.

35 American Watchman and Delaware Advertiser (November 25, 1823), 2, quoting from the Boston Galaxy of November 7, 1823, here.

36 Boston Post (September 26, 1846), 2, here.

37 The Plymouth Pilot (June 4, 1851), 2, here; see also The Southern Press (June 7, 1851), 2, here.

38 Burlington Free Press (July 30, 1858), 2, here.

39 The Barrister (Toronto: The Law Publishing Co., December 1894), 237, here. (For an example from 1882, see Tit-Bits From All The Most Interesting Books, Periodicals and Newspapers in the World No. 25, Vol. I (April 8, 1882), 12, here

40 Vermont Bar Association: Officers, Proceedings, Papers and Addresses (October 12, 1897), Vol. IV No. 3, 347-348, here.

41 Mitchel Capital (February 9, 1906), 1, here.

42 Bridgeport Evening Farmer (September 6, 1912), 2, here.

43 Bridgeport Times and Evening Farmer (December 1, 1919), 1, here.

44 Fort Benton River Press (February 2, 1921), 8, here.

45 Daily Ardmore (January 22, 1923), 1, here.

46 Cassville Republican (March 8, 1934), 1, here.

47 The Carthage Citizen (February 21, 1947), 1, here.

48 Middlesboro Daily News (February 10, 1950), 1, here.

49 Northwest Arkansas Times (March 7, 1955), 1, here. See also, Kansas City Word and Way (February 3, 1955), 2, here.

50 Gastonia Gazette (January 22, 1963), 3, here.

51 Burlington Daily Times (April 5, 1972), 4B, here.

52 Bluefield Daily Telegraph (March 3, 1977), 5, here.

53 See, for example, Philadelphia Gazette of the United States (August 3, 1791), reporting an event on June 30, here; Milwaukee Sentinel and Gazette (June 14, 1851), 2, here; The New Bloomfield Times (December 30, 1879), 4, here; The Green Bag (Boston: October 1903), Vol. XV, No. 10, 502, relating info from circa 1880, here; Quincy Daily Herald (January 26, 1881), 2, here; Indianapolis Journal (February 2, 1885), 2, here; Savannah Morning News (March 14, 1895), 6, here; Jeffersonville Evening Journal (October 29, 1896), 2, here; Columbus Daily Times (March 15, 1898), 4, here; Seymour Daily Republican (March 2, 1898), 2, here; Atlanta Constitution (November 12, 1901), 7, here; Washington Evening Journal (February 3, 1902), 1, here; The Quincy Journal (February 22, 1908), 5, here; Norwich Bulletin (June 11, 1909), 6, here; Gulfport Daily Herald (September 9, 1910), 4, here; The Jackson Herald (August 7, 1913), 1, here; Santa Anna Daily Evening Register (July 21, 1914), 1, here; Vienna News (September 16, 1915), 1, here; Bridgeport Evening Farmer (February 12, 1916), 1, here; Bridgeport Evening Farmer (October 23, 1916), 1, here; Missouri Valley Independent (January 4, 1923), 1, here; Bluefield Daily Telegraph (March 8, 1971), 11, here; Bluefield Daily Telegraph (March 20, 1988), 7-4, here; and others.

54 Alexander V. Griswold, Prayers Adapted to Various Occasions of Social Worship: For Which Provision is Not Made in the Book of Common Prayer (Philadelphia: William Marshall & Co., 1835), 149-151, here.

55 Nolan B. Harmon, Ministerial Ethics and Etiquette (Nashville: Abingdon Press, 1987, originally published 1928), 52, here.

56 Marsh v. Chambers, 463 U.S. 783, 786 (1983).

57 American Legion v. American Humanist Association, 588 U.S. __, 18 (2019), (Alito, J.).