                                           KEN PAXTON
                                       ATTORNEY GENERAL OF TEXAS




                                             August 15, 2016



The Honorable Dan Patrick                              Opinion No. KP-0109
Lieutenant Governor of Texas
Post Office Box 12068                                  Re: The constitutionality of a volunteer justice
Austin, Texas 78711-2068                               court chaplaincy program and opening daily
                                                       judicial proceedings with prayer (RQ-0099-KP)
Ms. Seana Willing
Executive Director
State Commission on Judicial Conduct
Post Office Box 12265
Austin, Texas 78711-2265

Dear Governor Patrick and Ms. Willing:

        You have each requested an attorney general opinion regarding the constitutionality of a
judge allowing a prayer at the beginning of courtroom proceeaings. 1 In addition, Governor Patrick
has requested an opinion on the constitutionality of a "volunteer-led Justice Court Chaplaincy
Program." Patrick Request at 2.

         As background, the requests arise due to the practice of a sitting Justice of the Peace in
Montgomery County who has established a volunteer chaplain program, inviting "all religious
leaders of any faith in [his county] to participate." Patrick Request at 3. Governor Patrick explains
that initial motivation for the program was that the Justice of the Peace also acts as coroner and is
often required to be a first responder to deaths and must investigate the cause. Id. In an effort to
provide better comfort and counsel to those present at the scene of the death, and to allow him to
focus on his role as investigator, the Ju~tice of the Peace established the chaplain program. Id.
Governor Patrick further explains that the volunteer chaplains, upon request of a deceased' s friends
and family, "provide care and counsel to the mourners in those first-on-scene situations," and that
they are also invited to "give a brief prayer during the opening ceremonies" of the Justice of the
Peace's court proceedings. Id. Concerned that these practices may be unconstitutional, the State
Commission on Judicial Conduct ("Commission") has strongly cautioned the, Justice of the Peace
against this chaplain program and his current courtroom prayer practice. Id. at 2. Your requests
ask this office to address the constitutionality of those and similar practices.

        1
         Letter from Honorable Dan Patrick, Lt. Gov., to Honorable Ken Paxton, Tex. Att'y Gen. at I (Feb. 16,
2016) ("Patrick Request"); Letter from Ms. Seana Willing, Exec. Dir., State Comm'n on Judicial Conduct, to
Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (Feb. 17, 2016) ("Commission Request"), https://
www.texasattomeygeneral.gov/opinion/tequests-for-opinions-rqs.
The Honorable Dan Patrick                               (KP-0109)
Ms. Seana Willing
Page2



        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." U.S. CONST.
amend. I. "The Fourteenth Amendment imposes those substantive limitations on the legislative
power of the States and their political subdivisions." Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.
290, 301 (2000). Your questions therefore require an analysis of whether the courtroom prayer
and chaplain practices about which you ask are in violation of the Establishment Clause.

         We first address the Commission's question concerning whether a "moment of silence or
a perfunctory acknowledgement of religion by stating words to the effect, 'God save the State of
Texas and this Honorable Court"' would be constitutional. Commission Request at 2. Both the
United States Supreme Court and the Texas Supreme Court have longstanding practices of opening
their sessions with such an invocation. See Marsh v. Chambers, 463 U.S. 783, 786 (1983). While
the U.S. Supreme Court has not directly addressed the constitutionality of this practice, it has
repeatedly acknowledged it in the context of upholding other practices against Establishment
Clause challenges. Town ofGreece v. Galloway, 134 S. Ct. 1811, 1825 (2014); Lynch v. Donnelly,
465 U.S. 668, 693 (1984) (O'Connor, J., concurring). 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." Galloway, 134 S. Ct. at 1825.
Presumably the Court would not continue the practice of beginning its sessions in this manner if it
thought doing so violated the Constitution. Courts do not violate the Establishment Clause by
opening court proceedings with a statement such as, "God save the State of Texas and this
Honorable Court."

         We next address the constitutionality of a chaplain-led prayer like that being performed in
the court of the Justice of the Peace about whom you ask. 2 "The opening of sessions oflegislative
and other deliberative public bodies with prayer is deeply embedded in the history and tradition of
this country." Marsh, 463 U.S. at 786. The Justice of the Peace's courtroom prayer practice as
you describe it is in many ways similar to the Town of Greece's practice of opening its board
meetings with prayer, which the U.S. Supreme Court upheld in 2014 against a challenge under the
Establishment Clause. See Galloway, 134 S. Ct. at 1828. In both instances, religious leaders of
any faith are invited to deliver a prayer at the beginning of proceedings. See id. at 1816; Patrick
Request at 3. No guidance is given about the tone or content of the prayers. See Galloway, 134
S. Ct. at 1816; Patrick Request at 3. While the public officials themselves participate in the prayer,
the public is not required to do so, and nothing suggests that nonparticipants are disadvantaged or
disfavored due to their decision not to participate. See Galloway, 134 S. Ct. at 1826; Patrick
Request at 4. In upholding the prayers in Galloway, the Court emphasized that invocations at the
opening oflegislative sessions address gatherings of people comprising many different creeds:

                  These ceremonial prayers strive for the idea that people of many
                  faiths may be united in a community of tolerance and devotion.


            2 Although this office does not find facts in the opinion process, we will assume facts described in a request

 letter as true for purposes ofrendering legal advice in an opinion. See Tex. Att'y Gen. Op. No. JC-0134 ( 1999) at I.
The Honorable Dan Patrick                            (KP-0109)
Ms. Seana Willing
Page 3



                 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.

134 S. Ct. at 1823. Justice Kennedy further explained that "legislative bodies do not engage in
impermissible coercion merely by exposing constituents to prayer they would rather not hear and
in which they need not participate." Id. at 1826-27 (emphasizing that giving "[o ]ffense ... does
not equate to coercion"). A court would likely apply the same analysis to a courtroom prayer to
open proceedings. 3

        The Commission raises a distinction between the legislative prayer addressed in Galloway
and the courtroom prayer at issue here. Commission Letter at 5. Courts have frequently addressed
and upheld opening prayers before state and local legislative bodies, and they have done so in part
based on the history and tradition of such legislative prayers since the Continental Congress. See,
e.g., Marsh, 463 U.S. at 787; Pelphrey v. Cobb Cty., 547 F.3d 1263, 1278 (I Ith Cir. 2008)
(upholding a county commission's practice of allowing volunteer leaders of different religions to
offer invocations at meetings); Simpson v. Chesterfield Cty. Bd. ofSupervisors, 404 F.3d 276, 284
(4th Cir. 2005). Courts have said less with regard to prayer in the courtroom. The Commission
points to one Fourth Circuit Court of Appeals decision to support its position that judicial prayer,
in contrast with legislative prayer, does not survive scrutiny under the Establishment Clause. See
Commission Letter at 3; N Carolina Civil Liberties Union Legal Found. v. Constangy, 947 F.2d
1145 (4th Cir. 1991); see also Peters v. Ashcroft, 383 F.3d 302, 305 n.2 (5th Cir. 2004) (explaining
that cases from different circuits do not control the Fifth Circuit's construction of state and federal
law). Constangy involved the practice of a state district judge beginning court proceedings each
day by personally reciting a religious prayer before the litigants and their attorneys in his
courtroom. Constangy, 947 F.2d at 1147, 1149. Unlike the facts in the scenario here, the judge in
Constangy did not invite leaders of all faiths to pray. Id. at 1149. Limiting the opinion to "the
courtroom prayer at issue,'' the court concluded that the judge's practice was unconstitutional. Id.
at 1152.

         We have found no federal appellate decisions that have directly analyzed courtroom prayer
under the Establishment Clause in the twenty-five years since Constangy was issued. The
Constangy court based its decision in part on the distinction it drew between the historical practice
oflegislative prayer and the lack of such historical practice with regard to courtroom prayer, stating
that "[j]udicial prayer in the courtroom is not legitimated under the Establishment Clause by past
history or present practice." Id. at 1149. However, as discussed above, the U.S. Supreme Court

         3While the Commission urges use of the lemon test to determine whether the Establishment Clause is
violated, many of the U.S. Supreme Court's "recent cases simply have not applied the lemon test." Van Orden v.
Perry, 545 U.S. 677, 686 (2005); see Commission Request at 3; lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
The Court made no mention of the lemon test in Galloway, and it is therefore unlikely that a court would apply it to
the similar circumstances presented here.
The Honorable Dan Patrick                               (KP-0109)
Ms. Seana Willing
Page4



has opened its sessions with the prayer, "God save the United States and this Honorable Court,"
since at l'east 1827. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 29 (2004) (Rehnquist,
C.J., concurring in the judgment). Furthermore, the Court has acknowledged that the judiciary has
a "long-established practice of prayer at public events." Lee v. Weisman, 505 U.S. 577, 635 (1992).
The Court has also explained that "Marsh must not be understood as permitting a practice that
would amount to a constitutional violation if not for its historical foundation." Galloway, 134 S.
Ct. at 1819. Thus, other courts deciding the issue may disagree with Constangy that prayer in
judicial settings lacks historical foundation.

        Prior to the Court's decision in Galloway, it used four different tests to evaluate various
actions dhallenged on Establishment Clause grounds: (1) the three-pronged Lemon test; (2) the
"endorsement" test; (3) the "coercion" test; and (4) the Van Orden test based on history. See Van
Orden v. Perry, 545 U.S. 677, 699-703 (2005); Lee v. Weisman, 505 U.S. 577, 584-87 (1992);
Cty. ofAllegheny v. Am. Civil Liberties Union, 492 U.S. 573, 592-93 (1989); Lemon v. Kurtzman,
403 U.S. 602, 612-13 (1971). Although it was difficult to predict which test the Court would
apply to a specific set of facts, the court in Constangy reviewed the constitutionality of the
courtroom prayer under the Lemon test. See Constangy, 947 F.2d at 1147-49.

       However, since the decision in Constangy, the Supreme Court, addressing facts analogous
to those here, provided clear guidance regarding the constitutionality of prayer before
governmental entities and has combined an evaluation of history and coercion. 4 As in Galloway,

          4
            Perhaps the clearest explanation for the variety of approaches the Court has utilized in Establishment
 Clause jurisprudence comes from the late Justice Scalia:

                  As to the Court's invocation of the Lemon test: Like some ghoul in a late-night horror
         movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and
         buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little
         children and school attorneys of Center Moriches Union Free School District. Its most recent
         burial, only last Term, was, to be sure, not fully six feet under. ... Over the years, however, no
         fewer than five of the currently sitting Justices have, in their own opinions, personally driven
         pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has
         joined an opinion doing so.

                    The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to
         scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb
         at will. When we wish to strike down a practice it forbids, we invoke it; when we wish to uphold
         a practice it forbids, we ignore it entirely. Sometimes, we take a middle course, calling its three
         prongs no more than helpful signposts. Such a docile and useful monster is worth keeping around,
         at least in a somnolent state; one never knows when one might need him.

Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398-99 (1993) (Scalia, J., concurring)
(quotation marks and citations omitted). Cases like Marsh and Galloway illustrate that the Court has not utilized the
Lemon test for prayers before governmental sessions.
The Honorable Dan Patrick                             (KP-0109)
Ms. Sear;ia Willing
Page 5



nothing in the facts described suggests that the Justice of the Peace compels or coerces individuals
in his courtroom to engage in a religious observance. See Galloway, 134 S. Ct. at 1825. Instead,
the bailiff provides an opportunity for individuals to leave the courtroom during the prayer and
explains that participation in the prayer will have no effect on the decisions of the court. Patrick
Request at 4; cf Galloway, 134 S. Ct. at 1826 (explaining that although board members
participated, they did not solicit participation from the public, and nothing in the record indicated
that citizens were treated differently based on whether they participated in the prayer).
Accordingly, we believe a Justice of the Peace's practice of opening daily court proceedings with
a prayer by a volunteer chaplain as you describe is sufficiently similar to the U.S. Supreme Court's
decision in Galloway such that a court would likely be compelled to agree with Galloway that the
long-standing tradition of opening a governmental proceeding with prayer does not violate the
Establishment Clause. 5

        Finally, we address the constitutionality of a volunteer chaplain program, whereby
religious leaders, upon request, provide counsel to persons in distress. See Patrick Request at 9.
While we have found no court decisions addressing a volunteer chaplain program exactly like that
described, courts have upheld chaplain programs in a variety of other contexts. In Marsh, the U.S.
Supreme Court upheld the Nebraska Legislature's hiring of a chaplain, who was chosen by the
Legislative Council and paid out of public funds. 463 U.S. at 784-85, 794. Courts in other
jurisdictions have likewise upheld the hiring of chaplains by a county hospital, prisons, and
military establishments in order to provide counseling and guidance to individuals who request it.
See Carter v. Broadlawns Med Ctr., 857 F.2d 448, 457 (8th Cir. 1988); Johnson-Bey v. Lane, 863
F.2d 1308, 1312 (7th Cir. 1988); Katcoffv. Marsh, 755 F.2d 223, 237 (2d Cir. 1985). In each of
these cases, the chaplains were paid by public funds, creating more significant Establishment
Clause concerns than exist here, where the chaplains serve on a voluntary basis without cost to the
taxpayer and only upon request of those who wish to receive the chaplain's assistance. A court
would therefore likely conclude that the volunteer chaplain program as you describe it does not
violate the Establishment Clause. 6




          5Nothing   in the facts presented to us indicates "that the invocations denigrate nonbelievers or religious
 minorities, threaten damnation, or preach conversion." Galloway, 134 S. Ct. at 1823. The U.S. Supreme Court has
 explained that were such circumstances to exist, the questions presented would be different, and they could raise
 constitutional concerns. Id.

          6
           The Commission has advised this office that it likewise "does not consider a judge's operation of a Court
 Chaplaincy Program to be an Establishment Clause issue." Brief from Ms. Seana Willing, Exec. Dir., State Comm'n
 on Judicial Conduct, to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (Mar. 4, 2016).
The Honorable Dan Patrick                    (KP-0109)
Ms. Seana Willing
Page 6



                                      SUMMARY

                      A Justice of the Peace does not violate the Establishment
              Clause by opening a court session with the statement "God save the
              State of Texas and this Honorable Court."

                      A court would likely conclude that a Justice of the Peace's
              practice of opening daily court proceedings with a prayer by a
              volunteer chaplain as you describe is sufficiently similar to the facts
              in Galloway such that the practice does not violate the Establishment
              Clause.

                      A court would likely conclude that the volunteer chaplain
              program you describe, which allows religious leaders to provide
              counseling to individuals in distress upon request, does not violate
              the Establishment Clause.

                                             Very truly yours,




                                             KEN PAXTON
                                             Attorney General of Texas



BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee
