Can a Texas justice of the peace open court with a prayer or run a volunteer chaplain program?

Plain-English summary

Lieutenant Governor Dan Patrick and Seana Willing, the executive director of the State Commission on Judicial Conduct, each asked the AG about the constitutionality of a judge allowing prayer at the start of courtroom proceedings, and Governor Patrick also asked about a volunteer-led justice court chaplaincy program. The questions arose from a sitting justice of the peace in Montgomery County. Because that JP also acts as coroner and is often a first responder to deaths, he set up a volunteer chaplain program, inviting religious leaders of any faith in his county to participate. The chaplains, on request of a deceased person's friends and family, provide care and counsel to mourners at the scene, and they are also invited to give a brief prayer during the opening of the JP's court proceedings. The Commission had cautioned the JP that these practices might be unconstitutional, so the requests asked the AG to weigh in.

The AG analyzed the questions under the First Amendment's Establishment Clause, which applies to the states through the Fourteenth Amendment. It reached three conclusions.

First, opening a court session with a phrase like "God save the State of Texas and this Honorable Court" does not violate the Establishment Clause. Both the U.S. Supreme Court and the Texas Supreme Court have long opened their sessions with such an invocation, and the U.S. Supreme Court has repeatedly described this kind of phrase as part of the nation's heritage and expressive idiom.

Second, a volunteer chaplain leading a prayer to open daily court proceedings, as described, would likely survive an Establishment Clause challenge. The AG found the practice closely similar to the Town of Greece's practice of opening board meetings with prayer, which the U.S. Supreme Court upheld in Town of Greece v. Galloway in 2014. In both, religious leaders of any faith are invited, no guidance is given on the content of the prayers, the public is not required to participate, and nonparticipants are not disadvantaged. The AG noted that the Commission pointed to a 1991 Fourth Circuit decision, Constangy, that struck down a judge personally reciting a prayer in his own courtroom, but distinguished it: the judge in Constangy did not invite leaders of all faiths, and that court rested partly on a view that judicial prayer lacked historical foundation, a premise later authority calls into question given the Supreme Court's own invocation since at least 1827. The AG also explained that the Supreme Court did not apply the Lemon test in Galloway, instead combining history and coercion, and that nothing in the facts suggested the JP coerced anyone: the bailiff lets people leave during the prayer and explains participation has no effect on the court's decisions.

Third, the volunteer chaplain program, in which religious leaders provide counsel to persons in distress on request, would likely not violate the Establishment Clause. Courts have upheld chaplain programs run by legislatures, a county hospital, prisons, and the military, all using paid chaplains. Because these chaplains served at public expense, those programs raised more significant Establishment Clause concerns than the Montgomery County program, where chaplains volunteer at no taxpayer cost and serve only those who ask.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. In particular, the federal Establishment Clause framework has continued to shift since this opinion: the U.S. Supreme Court has since stated that it abandoned the Lemon test in favor of an inquiry grounded in historical practices and understandings, a direction consistent with the history-and-tradition approach this opinion drew from Galloway. Confirm the current state of First Amendment doctrine before relying on the specific tests discussed here.

What the opinion meant for those who asked

The Lieutenant Governor (as the opinion described it): The opinion answered that a justice of the peace's practice of opening daily court with a volunteer chaplain's prayer, as described, would likely not violate the Establishment Clause, and that the volunteer chaplain program providing counsel on request would likely be constitutional as well.

The State Commission on Judicial Conduct (as the opinion described it): The opinion addressed the Commission's specific concerns. It concluded the ceremonial "God save the State of Texas and this Honorable Court" invocation is constitutional, and it engaged the Commission's reliance on the Fourth Circuit's Constangy decision, distinguishing it on the facts and explaining why later Supreme Court authority points the other way. The opinion noted the Commission had advised that it did not consider the chaplaincy program itself an Establishment Clause issue.

The Montgomery County justice of the peace (as the opinion described the situation): The opinion treated the JP's described practices, an all-faiths invitation, no required participation, an opt-out, and a no-cost volunteer chaplain program, as the kind of practice a court would likely uphold, while flagging that the analysis assumed the facts as described in the requests.

Common questions

Can a Texas judge open court with a prayer?
As the opinion read the law, a justice of the peace opening daily proceedings with a brief prayer by a volunteer chaplain, with any faith invited and no one required to participate, would likely not violate the Establishment Clause, based on the U.S. Supreme Court's reasoning in Town of Greece v. Galloway.

Is saying "God save the State of Texas and this Honorable Court" allowed?
The opinion said yes. It described that kind of invocation as a long-standing ceremonial practice of both the U.S. and Texas supreme courts that does not violate the Establishment Clause.

Didn't a court strike down courtroom prayer before?
The opinion discussed the Fourth Circuit's 1991 Constangy decision, which struck down a judge personally reciting a prayer in his courtroom. It distinguished that case because the judge there did not invite leaders of all faiths, and it explained that later Supreme Court authority undercuts that decision's premise that judicial prayer lacks historical foundation. The opinion also noted that out-of-circuit decisions do not control Texas courts.

What makes the difference between constitutional and unconstitutional prayer?
Under the opinion's reading of Galloway, the key is the absence of coercion. The facts described no compulsion: people could leave during the prayer, and participation had no effect on the court's decisions. The opinion noted that prayers that denigrate nonbelievers, threaten damnation, or preach conversion could raise different concerns.

Is a volunteer chaplain program constitutional?
The opinion concluded a court would likely uphold the described program, where religious leaders provide counsel to people in distress on request at no public cost. It reasoned that courts have upheld even publicly funded chaplain programs, so an unpaid, request-only program raises fewer concerns.

Background and statutory framework

The First Amendment bars laws respecting an establishment of religion or prohibiting free exercise, and the Fourteenth Amendment applies those limits to the states and their subdivisions (U.S. Const. amend. I; Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301 (2000)). Opening sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the nation's history and tradition, and the U.S. Supreme Court has repeatedly acknowledged the practice of opening court sessions with a ceremonial invocation as part of the nation's heritage and expressive idiom (Marsh v. Chambers, 463 U.S. 783, 786 (1983); Town of Greece v. Galloway, 134 S. Ct. 1811, 1825 (2014); Lynch v. Donnelly, 465 U.S. 668, 693 (1984)). In Galloway, the Court upheld a town board's practice of opening meetings with prayer by volunteer religious leaders of any faith, emphasizing that exposing constituents to prayer they would rather not hear is not impermissible coercion and that offense does not equate to coercion (Galloway, 134 S. Ct. at 1816, 1823, 1826-27).

Federal courts of appeals have frequently upheld legislative-body invocations (Pelphrey v. Cobb Cty., 547 F.3d 1263, 1278 (11th Cir. 2008); Simpson v. Chesterfield Cty. Bd. of Supervisors, 404 F.3d 276, 284 (4th Cir. 2005)). The Fourth Circuit's Constangy decision struck down a judge's practice of personally reciting a prayer in his courtroom where he did not invite leaders of all faiths, resting in part on a perceived lack of historical foundation for courtroom prayer, but out-of-circuit decisions do not control the Fifth Circuit (N. Carolina Civil Liberties Union Legal Found. v. Constangy, 947 F.2d 1145, 1147-52 (4th Cir. 1991); Peters v. Ashcroft, 383 F.3d 302, 305 n.2 (5th Cir. 2004)). The Supreme Court has opened its sessions with "God save the United States and this Honorable Court" since at least 1827 and has acknowledged the judiciary's long-established practice of prayer at public events (Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 29 (2004); Lee v. Weisman, 505 U.S. 577, 635 (1992)).

The Court historically used several Establishment Clause tests, including the three-pronged Lemon test, an endorsement test, a coercion test, and a history-based approach, but it did not apply Lemon to prayers before governmental sessions (Van Orden v. Perry, 545 U.S. 677, 686, 699-703 (2005); Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971); Cty. of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573, 592-93 (1989); Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398-99 (1993)). Courts have upheld chaplain programs in legislative, hospital, prison, and military contexts, all involving publicly paid chaplains (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); Katcoff v. Marsh, 755 F.2d 223, 237 (2d Cir. 1985)). This office assumes the facts described in a request letter are true for purposes of rendering an opinion (Tex. Att'y Gen. Op. No. JC-0134 (1999)).

Citations

Constitutional provisions:

• U.S. Const. amend. I (and the Fourteenth Amendment, which applies it to the states)

Texas Attorney General opinions:

• Tex. Att'y Gen. Op. No. JC-0134 (1999)

Cases:

• Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000)
• Marsh v. Chambers, 463 U.S. 783 (1983)
• Town of Greece v. Galloway, 134 S. Ct. 1811 (2014)
• Lynch v. Donnelly, 465 U.S. 668 (1984)
• N. Carolina Civil Liberties Union Legal Found. v. Constangy, 947 F.2d 1145 (4th Cir. 1991)
• Pelphrey v. Cobb Cty., 547 F.3d 1263 (11th Cir. 2008)
• Simpson v. Chesterfield Cty. Bd. of Supervisors, 404 F.3d 276 (4th Cir. 2005)
• Peters v. Ashcroft, 383 F.3d 302 (5th Cir. 2004)
• Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004)
• Lee v. Weisman, 505 U.S. 577 (1992)
• Van Orden v. Perry, 545 U.S. 677 (2005)
• Lemon v. Kurtzman, 403 U.S. 602 (1971)
• Cty. of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573 (1989)
• Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993)
• Carter v. Broadlawns Med. Ctr., 857 F.2d 448 (8th Cir. 1988)
• Johnson-Bey v. Lane, 863 F.2d 1308 (7th Cir. 1988)
• Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0109
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0109.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

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 proceedings. [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 Justice 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.

    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 of Greece 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 of legislative 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 of legislative 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. 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 (11th 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. of Supervisors, 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 of legislative 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 has opened its sessions with the prayer, "God save the United States and this Honorable Court," since at least 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 challenged 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. of Allegheny 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, 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); Katcoff v. 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]

                                  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

[1] Letter from Honorable Dan Patrick, Lt. Gov., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (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.texasattorneygeneral.gov/opinion/requests-for-opinions-rqs.

[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 of rendering legal advice in an opinion. See Tex. Att'y Gen. Op. No. JC-0134 (1999) at 1.

[3] While 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.

[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.

[5] Nothing 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).