In response to a post–Civil War South where “judges, having ears to hear, hear[d] not,”1 Congress enacted several statutes to force state officials to comply with the new Fourteenth Amendment.2 One of those statutes was the Civil Rights Act of 1871, now codified at 42 U.S.C. § 1983, which provides a cause of action against any person who deprives another of their constitutional rights under color of law.3 As articulated by the Supreme Court: “The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.”4 Recently, in Freedom from Religion Foundation, Inc. v. Mack,5 the Fifth Circuit issued a stay pending appeal to allow a justice of the peace, Judge Mack, to continue opening court sessions with prayer.6 In its reasoning, the court concluded that Judge Mack could not be sued in his official capacity for prospective relief under 42 U.S.C. § 1983.7 Regardless of the court’s analysis on the merits of the Establishment Clause claim, the Fifth Circuit’s determination that Judge Mack could not be sued in this way ignored the statute’s text, history, and surrounding jurisprudence.
In 2014, Judge Mack, a justice of the peace in Montgomery County, Texas, created a chaplaincy program to assist him in his duties as county coroner.8 As a corollary to the program, Judge Mack regularly invites the volunteer chaplains to participate in “opening ceremonies” in his courtroom before the first case is called.9 In these ceremonies, chaplains offer prayers or “encouraging words.”10 Those with business before the court are not required to stay in the room and are told that their involvement will not be considered by the court in its decisionmaking.11
Between August 2015 and July 2017, attorney John Roe appeared before Judge Mack on ten occasions, and each time “a Christian chaplain delivered a Christian prayer” during the opening ceremonies.12 Consequently, in July 2017, feeling that his refusal to participate would prejudice his clients, Roe stopped representing clients whose cases had been assigned to Judge Mack.13 On May 29, 2019, Roe and the non-profit organization Freedom from Religion Foundation (FFRF) filed suit against Judge Mack in his individual and official capacities, alleging that Judge Mack’s opening ceremonies violate the Establishment Clause of the U.S. Constitution.14
Both parties filed motions for summary judgment.15 The District Court for the Southern District of Texas granted the plaintiffs’ motion and denied the defendant’s,16 finding that the opening ceremonies violate the Establishment Clause.17 While the defendant argued that Marsh v. Chambers18 and Town of Greece v. Galloway19 controlled, Senior District Judge Hoyt distinguished these cases because both concerned prayer in a legislative, rather than judicial, setting.20 Moreover, the court found that the ceremonies have “both a religious purpose and a primary effect of advancing or endorsing religion,”21 highlighting the defendant’s statement that his chaplaincy program was something “that God wanted in place, for His larger purpose.”22 Thus, the court concluded that the ceremonies were unconstitutional and the plaintiffs were entitled to summary judgment, issuing a declaratory decree and warning that if the defendant violated the decree, the court would issue an injunction23 pursuant to 42 U.S.C. § 1983.24 The defendant filed a request for a stay pending appeal in the Fifth Circuit.25
The Fifth Circuit granted the stay. Writing for the panel, Judge Oldham26 determined that Judge Mack’s appeal was likely to succeed,27 that he would face irreparable harm without a stay,28 that “any injury to FFRF [was] outweighed by Judge Mack’s strong likelihood of success on the merits,”29 and that the public interest in correctly applying the First Amendment warranted a stay.30 The court reasoned that Judge Mack was likely to succeed on appeal because he could not be sued in his official capacity under § 1983,31 and FFRF was unlikely to succeed on its individual-capacity claim due to the “abundant history and tradition of courtroom prayer”32 and the fact that Judge Mack “invite[s] the public to leave the [c]ourt before invoking God,”33 making his opening ceremonies less coercive than other historical examples of courtroom prayer.34 The court concluded that Judge Mack would be irreparably harmed without the stay because (a) the district court’s intervention into Judge Mack’s courtroom violated federalism principles35 and (b) the Texas State Commission on Judicial Conduct continued to investigate Judge Mack.36
In determining that Judge Mack could not be sued in his official capacity under 42 U.S.C. § 1983, the court first stated that “[o]bviously, ‘[s]uits against state officials in their official capacity . . . should be treated as suits against the State,’”37 which must ordinarily be dismissed on the basis of Eleventh Amendment sovereign immunity.38 Next, the court cited Will v. Michigan Department of State Police39 for the proposition that “[s]uits against the State under 42 U.S.C. § 1983 are doubly dismissible because the State is not a ‘person’ under that statute.”40 Instead, according to the Fifth Circuit, “the only way to bring an official-capacity claim against an officer of the State”41 is under Ex parte Young,42 which could not apply here as Judge Mack is a county officer and the complaint did not ask for relief under Ex parte Young.43
The Fifth Circuit’s analysis of judicial immunity under § 1983 ignored the statute’s text, history, and surrounding jurisprudence. First, § 1983 does generally provide a cause of action against state officials for prospective relief. A plain reading of § 1983 indicates that it applies to state officials, as state officials are “person[s],”44 and Supreme Court precedent confirms this reading in official-capacity suits for prospective relief. Second, § 1983 applies to state judges specifically, with some limitations. The drafters of § 1983 specifically contemplated suits against judges, and courts have consistently entertained such suits. Though § 1983 was amended in 1996, the amendment merely prescribed a particular path to sue for prospective relief against state judges, and the plaintiffs in Mack adhered to that path.
On its face, the text of § 1983 applies to all state officials. Invoking broad authority, the statute applies to “[e]very person who, under color of [law], subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”45 As a state official is a “person,” the statute applies to state officials.46
Supreme Court precedent also supports the application of § 1983 to state officials. Although the Fifth Circuit cited Will to support its proposition that “[s]uits against the State under § 1983 are doubly dismissible because the State is not a ‘person’ under that statute,”47 the opinion ignored a crucial caveat made in that very opinion. Writing as though this limitation was so obvious that it hardly needed to be stated, the Will Court added in a footnote that “[o]f course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983.”48 The Court reached this seemingly obvious conclusion by looking to existing Supreme Court precedent, specifically Kentucky v. Graham,49 which made clear that, in the sovereign immunity context, “official-capacity actions for prospective relief are not treated as actions against the State.”50 The Court explained that the distinction between actions for damages and actions for prospective relief is a “commonplace” feature of sovereign immunity doctrine,51 which would have been familiar to the enacting Congress.52 Since Will was decided in 1989, other circuit courts have consistently looked to this distinction in their analysis of sovereign immunity to allow § 1983 suits against individual defendants in their official capacity for prospective relief.53 Thus, it is not true that “the only way to bring an official-capacity claim against an officer of the State” is under Ex parte Young.54
While the Fifth Circuit did not explicitly distinguish state judges from other state officers in its opinion, the history and purpose of § 1983 demonstrate that it applies to state judges in particular. In the words of the Supreme Court, § 1983 was designed “to protect the people from unconstitutional action under color of state law, ‘whether that action be executive, legislative, or judicial.’”55 Those who supported its enactment knew that an effective statute would necessarily encompass the actions of state judges, emphasizing the failure and complicity of the state courts in the terror of the post–Civil War South when they described that “records of the [state] tribunals are searched in vain for any evidence of effective redress [of federally secured rights]”56 and that “judges, having ears to hear, hear not.”57 Thus, “[t]he debate was not about whether the predecessor of § 1983 extended to actions of state courts, but whether this innovation was necessary or desirable.”58
Supreme Court precedent also explicitly allows for suit under § 1983 against state judges, albeit with some limitations. While the Court has recognized some judicial immunity, it has continued to recognize the distinction between suits for damages and suits for prospective relief in the context of state judges. In Pulliam v. Allen,59 the Court held that, while judicial immunity is generally a bar to damages suits against state judges, “judicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in her judicial capacity.”60
While § 1983 was amended in 1996 to abrogate Pulliam by prescribing a particular path to sue for prospective relief against state judges, this amendment did not make state judges immune from suit in all § 1983 actions.61 The added text explicitly contemplates application to state judges, stating that “in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”62 If an official-capacity suit could never be brought against a judicial officer, this provision of § 1983 would be superfluous.63 The Senate Report confirms this reading, as it emphasizes that the amendment “does not provide absolute immunity for judicial officers.”64 Even under the amended version of § 1983, a plaintiff may still seek declaratory relief,65 may seek injunctive relief when a declaratory decree is violated or is unavailable, and may seek damages when the basis of the suit is a judge’s “nonjudicial action”66 or action clearly exceeding the judge’s jurisdiction.67
The Fifth Circuit should have applied this § 1983 analysis. The FFRF clearly followed the formula articulated by Congress in the 1996 amendment, requesting “[j]udgment declaring that Judge Mack’s courtroom prayer practice violates the Establishment Clause of the First Amendment to the United States Constitution or, in the event declaratory relief is unavailable, injunctive relief ordering Judge Mack to discontinue his courtroom prayer practice.”68 The Fifth Circuit even explicitly acknowledged this, writing that the plaintiffs’ requested relief “perfectly tracks the text of § 1983.”69 Thus, the district court did not, as the Fifth Circuit claimed, “badly los[e] its footing” in finding that the plaintiffs retained an official-capacity claim.70 This claim was well-established under the law.
Although this procedural point may not have changed the ultimate outcome in this case with respect to the Establishment Clause claim, the curtailing of prospective relief against judges is significant. In litigation over constitutional violations by municipal and state officials, § 1983 is the primary statute used to obtain relief.71 Because of the existing procedural hurdles, “the success rate for § 1983 plaintiffs is [already] lower than for other kinds of litigation.”72 Individual-capacity claims cannot provide protection when prospective relief is directly linked to the defendant’s official capacity.73 Moreover, this procedural move comes at a time when the Fifth Circuit has been particularly hostile to prospective relief against state officials in some high-profile cases74 and closes one of the few remaining doors for this important remedy. If the Supreme Court or other circuits follow the Fifth Circuit’s latest development in the “pattern of narrow, debilitating construction” of the civil rights amendments and legislation,75 states will only be incentivized to become more aggressive in their attempts to transgress Fourteenth Amendment doctrine.76 By incorrectly curtailing the use of § 1983 against state judges for prospective relief, the Fifth Circuit has taken us one step backward to a reality where “judges, having ears to hear, hear not.”77