The legal fight over the longstanding practice in Rowan County to open county commissioners’ meetings with prayer has moved one step closer to the Supreme Court, now that the full 4th Circuit Court of Appeals will hear the case next year.
The Richmond, Va.,-based court announced late Monday that all of its 15 members will hear the case, probably in late January. The losing side could then appeal to the Supreme Court.
Bill Marshall, a University of North Carolina law professor who specializes in issues of church and state, said Tuesday that the 4th Circuit’s decision to hear the case en banc “is not good news for Rowan County,” given that one of the court’s most influential members already is on record saying that the prayer is unconstitutional.
In September, a divided three-judge panel of appeals court voted to overturn the 2015 decision by U.S. District Judge James Beaty of Greensboro who ruled the commissioners’ prayers improper because they were given by the elected officials, not the public or visiting ministers. Between 2007-2013, 97 percent of those prayers were Christian.
Appeals court judges Steven Agee of Virginia and Dennis Shedd of Columbia, S.C., however, cited a 2014 U.S. Supreme Court ruling involving the town of Greece, N.Y., that upheld prayer at public meetings. That opinion created “a clear line of precedent not only upholding the practice of legislative prayer but acknowledging the ways in which it can bring together citizens of all backgrounds and encourage them to participate in the workings of their government.”
In his September dissent, the 4th Circuit’s Harvie Wilkinson said the commissioners’ prayers sent a message of “exclusion” to those who did not ascribe to their beliefs.
“... It is the combination of the role of the commissioners, their instructions to the audience, their invocation of a single faith and the local governmental setting that threatens to blur the line between church and state to a degree unimaginable” in the earlier Supreme Court case, Wilkinson wrote.
That Wilkinson remains one of the country’s leading conservative legal voices makes his argument all the more significant, Marshall said Tuesday.
“It would be my guess that a lot of the 4th Circuit members will be influenced by his opinion,” Marshall said. “So if I were predicting, I would say that the fact the 4th Circuit is meeting en banc is not good news for Rowan County.”
Brett Harvey, senior counsel of the Alliance Defending Freedom, which has helped represent Rowan during the long court fight, said the issue at hand is that all Americans, “including public servants, should have the freedom to pray without being censored.”
“The First Amendment affirms the liberty of Americans to pray according to their consciences before public meetings,” he said. “For that reason, the 4th Circuit (panel) rightly upheld Rowan County’s prayer policy, which is clearly constitutional.”
Officials with the American Civil Liberties Union of North Carolina celebrated the decision. That group is representing three Rowan County residents in a challenge to the commissioners’ prayers.
“This practice is clearly out of step with the First Amendment’s protection of religious liberty,” Chris Brook, legal director of the state ACLU, said in a statement.
“When people attend meetings of their local government, they should not have to worry about being coerced to participate in a sectarian prayer that goes against their beliefs and being discriminated against by local officials when they don’t.”
The case marks the first time a federal appeals court has reviewed a government prayer policy since the U.S. Supreme Court voted 5-4 in May 2014 that clergy-led invocations used to open town council meetings in Greece, New York, were constitutional, says the ACLU.
In Greece, officials invited religious leaders to give prayers for the benefit of council members at the start of meetings. People of different religious traditions, including members of the Jewish, Baha’i, and Wiccan faiths, delivered those invocations, and the council members never directed residents to participate in the prayers.
In Rowan County, the officials themselves deliver the prayers, and the commissioners instruct those present to stand and join in.
The ACLU filed the original lawsuit in March 2013 on behalf of county residents Nan Lund, Robert Voelker, and Liesa Montag-Siegel.
In May 2015, Beaty ruled that Rowan County’s meeting ritual “falls outside of the prayer practices approved in Town of Greece.”
Asked if the Rowan case is destined to be settled by the Supreme Court, Marshall said the absence of the court’s ninth member makes it “hard to say.”
“They seem to be dodging a fair amount these days and this is the type of case that they may want to avoid,” he said. “My guess is (the justices would be) more likely to take it if Rowan County wins ... because of Wilkinson’s influence. But it could also depend on how the (full appeals court) decides the case.”
Brook told the Observer that the ACLU and its clients “are keeping all of our options open in this case, including seeking review by the Supreme Court if necessary.”
“Having said that, we are confident our clients will prevail when this case is heard by the full Fourth Circuit.”