Colin McNamara: Preparing to deal with judges can be trying

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Back in mid-November, when I first received a state-church complaint about a judge from a mostly rural county in eastern Tennessee, I confess that I didn’t exactly jump for joy that I’d been tasked with “setting him straight.”

The complainant reported that this judge, who presides over juvenile delinquency cases, was also regularly teaching bible classes at the county’s juvenile detention facility. The county only has two juvenile court judges, meaning that a child sentenced to juvie on a Monday could hear “the Good News” the following Sunday from the very same judge who put him there.

As a lawyer who’s done a smattering of juvenile defense practice in my nascent career, I know that it’s very rare for a child to have only one hearing before a juvenile court judge. Rather, they often have to come before the bench time and again so the judge can evaluate their progress and adjust their sentence accordingly. You see, juvenile court judges are fundamentally different than your garden variety black robes. Their mission (at least in theory) is to reform, not to punish. To that end, they are given much broader discretion to craft sentences that serve “the best interests of the child.”

You see the problem here, right?

The complainant’s concern — which I fully shared — was that the kids in this juvenile detention facility would feel pressured to “play Christian” in order to curry favor with the judge. Children can’t be reasonably expected to distinguish between an authority figure acting in their personal vs. official capacity — there’s an entire line of Supreme Court cases striking down religious promotion by school teachers built on that very principle. At this exceptionally vulnerable point in their young lives, the judge is the apex authority figure to these kids. It can be said, without exaggeration, that he holds their futures in his hands.

I knew I had to tell him this was coercive; I knew I had to tell him this was unethical; I knew that someone had to tell him to stop, and that it would have to be me.

But I’ll level with you, dear reader: I really don’t like writing to judges. If you follow FFRF’s usual caseload, you know that half of the letters we send are to school district superintendents who are either completely ignorant of the law or just don’t give a damn, with their responses ranging from conciliatory to cold silence at either end of the spectrum. But when it comes to judges, three critical distinctions collude to make them particularly hot potatoes to handle:

1. It is literally their job to know and apply the law.

2. They have an image of themselves as fair and impartial arbiters of justice, and tend to not appreciate suggestions to the contrary.

3. They really don’t like it when lawyers try to upend the usual power dynamic and tell them what to do.

Suffice it to say that the responses we get from judges often veer on the, shall we say, pricklier side. So, when I found out (after a bit of digging) that this judge also happened to sit on the Board of Judicial Conduct, I set to work on the letter with all the urgency of a man preparing his last meal.

I spent two days twisting myself in knots over every comma, testing the patience of my colleague Sam Grover by asking him to review at least four different drafts. Finally, on Nov. 30, I sent it out — and patiently waited for the return volley. And waited . . . and waited. Silence.

After almost two months passed without a reply, I sent a follow-up letter. I’d begun to suspect that this judge, rather than choosing to spew venom at me for daring to question his ineffable grasp of both the Constitution and the rules of judicial ethics, had simply elected to give me the brush-off.

And then my phone rang.

Kristina, who helps field our incoming calls, told me that she had a gentleman from Tennessee on the line calling for Colin McNamara. Oh, wonderful, I thought. I guess smiting me in a letter wasn’t personal enough for him. I turned down the volume on the handset and readied myself for the tongue-lashing of a lifetime.

“Put him through.” Deep breath. “Good afternoon, this is Colin McNamara with the Freedom From Religion Foundation. How can I help you?”

A warm, rich voice with a pleasant touch of Tennessee twang came through the phone.

“Hi, Mr. McNamara. How are you today?”

Lead with a smile — follow with a switchblade. Here it comes . . .

“I’ve received your letter,  and I wanted to let you know that I thought you expressed yourself very well and had some very good thoughts. I’ve always been a great believer in separation of church and state, and I’ve even taught some constitutional law courses, so we probably have similar thoughts on many matters.”

Wait, what? Is this a trap?

“I just wanted to touch base with you, person to person, and let you know that it’s taken care of. Back when I first got your letter, I made a couple of calls to my church and others and let them know that, as far as any input from me goes in any of the [juvenile detention] services, I will no longer be doing that.”

Oh. Your. God.

“I think it’s important in handling any case — I’ve always thought this through all my years — that you don’t differentiate between people who may be atheist, may be of different religions — that those are not factors in making decisions.”

AMEN-er, sorry. Caught in the moment.

What followed was a pleasant conversation about his interest in the welfare of these troubled young people. He explained that there was a bit more to the story. It wasn’t just church services that he led, but also secular educational classes to make sure that these kids stayed up to date on their schooling. For the few minutes that we spoke, I got a fuller picture of this man — a good, kind-hearted, Southern gentleman who I sincerely believe really did want to see these kids succeed.

Nevertheless, he understood my concern that involving himself in the church services risked children feeling pressured into participation, so out of respect for their individual beliefs, he would no longer be a part of it. We exchanged a few laughs about “that disgrace we had down in Alabama” (his words, referring to Roy Moore — in case you couldn’t guess) and then we went our separate ways.

As any enthusiast of FFRF litigation knows, we are currently engaged in a lawsuit against Judge Wayne Mack, a Texas justice of the peace who just can’t help himself from foisting his Christian beliefs onto every soul who enters his courtroom. There are few things that inflame my ire more than seeing those who are granted the public’s trust abuse that power to strong-arm others into their religious beliefs. Religious bullying, especially from the bench, should turn the stomach of any liberty-loving American.

Oh, how I wish the Wayne Macks of the world would take a page out of this judge’s gospel.

Public officials are welcome to their religious beliefs and practices. They may pray to whomever or whatever they wish; they may burn their candles and drink their wine; they may believe in one god, 100 gods, or no god — “it neither picks my pocket, nor breaks my leg,” to quote the scholar of Monticello.

To every public servant out there, I say: Keep your religion and hold it close to your heart — it is yours to have and to hold, inviolate, forever. Our First Amendment secures your right to believe as stalwartly as my right not to believe. But recognize also that the machinery of government must be wielded responsibly. By virtue of your office, your actions carry an inherent risk of coercion that has to be rigorously managed to respect individual autonomy. When you allow your personal religious beliefs to bleed into your official actions, you strike a blow to the most sacrosanct of our basic freedoms: the freedom of conscience.

To those who get it, good on you. To those who don’t, shame on you. Looking at you, Judge Mack.

Colin E. McNamara is FFRF’s Robert G. Ingersoll Legal Fellow.