Prayer lawsuit shifted focus following Supreme Court ruling

Transcription

1 Prayer lawsuit shifted focus following Supreme Court ruling By Josh Bergeron Rowan County s prayer lawsuit is two months away from oral arguments, but recent court filings show a shift away from the most significant part of an initial complaint. When the American Civil Liberties Union, on behalf of three Rowan County residents, filed suit in 2013, the organization focused on the content of prayers. To plant sectarian prayers at the heart of local government is a prescription for religious discord, the original complaint states. In the following pages, the complaint places its largest focus on the idea that sectarian prayer affiliates Rowan County with one particular faith Christianity. The case was brought specifically to challenge the practice of delivering sectarian prayers See Prayer, 2 A JOSH BERGERON / SALISBURY POST FILE PHOTO On June 1, commissioners and county staff stand for a prayer before the start of a meeting.

2 Prayer Continued from 1A at meetings and challenge prayer practices under the U.S. Constitution s first and fourteenth amendments, court filings state. At the time, ACLU lawyers cited Joyner v. Forsyth County, in which the U.S. Fourth Circuit Court of Appeals decided Forsyth County endorsed Christianity with its prayer policy. The Joyner v. Forsyth County ruling came in In 2014, the U.S. Supreme Court s ruled in Town of Greece (N.Y.) v. Galloway. The court s ruling immediately injected the fact that county commissioners give prayers into Rowan s case. By a 5-4 vote, the U.S. Supreme Court in May 2014 ruled the town s practice of allowing volunteer chaplains to open meetings with a prayer was constitutional. The additions and changes to arguments became apparent in Rowan s case started immediately following the Town of Greece, N.Y. ruling. At the time, Lund v. Rowan County was still in the U.S. Middle District Court for North Carolina. ACLU lawyers won based on the changes. U.S. District Judge James Beaty based his ruling on the fact that commissioners and only commissioners provide the prayers and commissioners direct citizens to stand and pray. Rowan County appealed the ruling. The case is now in Fourth Circuit Court Court of Appeals, which scheduled oral arguments last week to occur in late January. Arguments in circuit court filing are similar, but not congruent. As AC- LU lawyers focused on the Town of Greece, N.Y. ruling, Rowan County s lawyers changed its arguments to match. In the latest by Rowan County s attorneys, the shift is noted in the second sentence. This case began as a challenge to the sectarian content of the county s legislative prayer practice, Rowan County s brief states. Once the Supreme Court in Greece eliminated the basis for that challenge by recognizing that sectarian prayers are part of the historical tradition... plaintiffs switched gears contending that the county s legislative prayer practice is unconstitutional because legislators, and not chaplains or clergy, offer the prayers. When summarizing its argument in a circuit court filing, lawyers for plaintiffs completely omit the original issue of sectarian prayer being included in content of county commissioners prayer from 2007 to When asked about the shift, North Carolina AC- LU Legal Director Christopher Brook said shifts happen frequently when court rulings occur in the middle of a case. It happens all the time in any hotly litigated area of the law, Brook said. There is always a new court ruling that is coming down. Brook said there s no doubt coercion is a more significant part of the ACLU s argument in the latest ruling, but the coercion argument has been there since day one. It s not an argument that s emerged for the first time in our briefing before the Fourth Circuit, Brook said. He s right. In the first filing, coercion was mentioned, but only after sectarian prayer. Coercion gained greater prominence in court filings after the Town of Greece, N.Y. decision. Ultimately, Beaty based his ruling and permanent injunction on coercion and the identity of those giving prayers county commissioners. An invitation In its latest filing, ACLU attorneys contend Rowan County commissioners routinely directed Rowan County citizens to participate in prayers. Plaintiffs arguments include commissioners focusing prayers on the broader public instead of being for the benefit of the board itself, directing public participation in prayers and creating a hostile environment by directing attendees to participate in prayer. The plaintiffs state there s no tradition of externally focused prayers. Rowan County fails to seriously grapple with the toxic and coercive atmosphere created by its board members, the plaintiffs filing states. For its part, Rowan County argues there s no constitutional basis for distinguishing prayers offered by legislators and the prayers aren t coercive because the public is not directed to participate, which is in direct opposition to the ACLU s argument. Rowan County s filing states the Supreme Court s decision in the Town of Greece, N.Y. doesn t give an indication whether its decision hinged on the fact that chaplains, instead of government officials, delivered prayers. It is only by assuming a constitutional violation which is the very thing at issue that plaintiffs can argue it makes a constitutional difference whether a legislator or a chaplain offers the prayer, Rowan County s circuit court filing states. By saying let us pray or please pray with me, ACLU lawyers argue commissioners intend for the audience to participate. Rowan County s lawyers call the statements an invitation rather than a direction. The words from the presiding commissioners are simply an invitation for citizens to participate voluntarily in the prayer or the pledge only if they freely choose to do so not a command that could reasonably be construed as directing citizens to participate in either activity, Rowan County s circuit court filing states. Rowan County s filing further states meeting attendees could leave the room during prayers or arrive late if offended. Commissioners now make it explicitly clear that meeting attendees can leave before prayers. Commissioners Chairman Greg Edds gives a similar statement each meeting stating that attendees can leave. However, it s almost always the case that the entire room of attendees participates during the prayer. The current prayers given by commissioners also largely avoid specifically Christian words, such as Jesus. A local pastor now gives opening invocations. Rowan County hasn t yet spent a significant sum of money on the lawsuit. The only recorded legal costs are to county attorney Jay Dees. The most significant costs paid to Dees occurred as Rowan County first retained The National Center For Life and Liberty in the suit. Cost estimates for fees paid to Dees are less than $5,000. Contact reporter Josh Bergeron at DENTURES Dr. Smith And His Staff Would Like To Welcome You To Our Office For All your Denture Needs Dentures Partials Extractions Most Insurances & Medicaid Accepted B.D. SMITH JR, DDS IN-HOUSE LAB Same Day Service On Relines & Repairs N. Cannon Blvd. Kannapolis Visit Us On-Line At:

3 Prayer lawsuit will be in federal appeals court Wednesday By Josh Bergeron Rowan County s prayer lawsuit that started in 2013 will have its day in court this week. Oral arguments in the prayer suit are scheduled for Wednesday morning in the U.S. Court of Appeals for the Fourth Circuit. Oral arguments will be held in Richmond, Va. At its core, the case is about whether legislators such as Rowan County Commissioners are able to offer prayers before meeting. When the American Civil Liberties Union initially filed its lawsuit in 2013, it focused on the sectarian content of prayers. The prayer giver s identity was mentioned in the original court filing, but has gained See Lawsuit, 2 A

4 Lawsuit Continued from 1A greater significance. Rowan County Commissioners are being represented for free by attorneys from Texas-based National Center for Life and Liberty. Plaintiffs in the case Rowan County residents Nan Lund, Robert Voelker and Liesa Montag-Siegel are represented by the American Civil Liberties Union. Both groups are scheduled to have about 20 minutes each on Wednesday for oral arguments. Recapping his organization s court filings, ACLU North Carolina Legal Director Christopher Brook this week said the prayers offered by commissioners from 2007 to 2013 were coercive. He specifically referenced Supreme Court case Town of Greece vs. Galloway, which has become a major reference point for both parties in the case. What Rowan County has done and did was exactly what Justice (Anthony) Kennedy cautioned against and warned about, Brook said. One ACLU court filing states: Rowan County fails to seriously grapple with the toxic and coercive atmosphere created by its board members. Coercion is a topic in the Supreme Court s Town of Greece, N.Y. decision. In the court s majority opinion, Kennedy extensively evaluates whether officials in Town of Greece, N.Y. coerced meeting attendees to pray. It s unclear how coercion might apply to Rowan County Commissioners previous practices. For its part, ACLU attorneys have argued that commissioners coerced meeting attendees to participate in prayer by using phrases such as let us pray. National Center for Life and Liberty attorney Barbara Weller interpreted the Greece vs. Galloway decision differently than Brook and the ACLU. What the Supreme Court said in Town of Greece is that you can have sectarian prayers as long as you don t denigrate anyone or any religion, Weller said. That s really the key point that we are making. The standard hasn t changed. Weller said Rowan County s position in the lawsuit is that commissioners aren t any different than volunteer chaplains, which were permitted in the Supreme Court s Town of Greece, N.Y. decision. She said the ACLU is trying to separate Rowan County Commissioners from a precedent set in the Town of Greece, N.Y. case. The Greece case never addressed who can offer sectarian prayers, she said. While talking to the Salisbury Post this week, Weller said she felt strongly the U.S. Fourth Circuit Court of Appeals would rule in favor of Rowan County. However, also expressed a bit of hesitation. I don t see how the court could come to any different conclusion, she said. So, you know from my perspective it seems like a no brainier, but you can never tell what a court can do. Similarly, Brook said you have to be careful about how much tea-leaf reading you do. Neither side will know the court s decision immediately following the oral arguments. The Fourth Circuit Court could rule within a few weeks or several months, both attorneys said. In North Carolina s Middle District Court, Judge James Beaty ruled against Rowan County, basing his argument on the identity of prayer givers, Rowan County Commissioners. He issued a permanent injunction with his ruling. Commissioners have voted to appeal the ruling. Since the ruling, commissioners have asked Sheriff s Office Chaplain Michael Taylor to give opening invocations at meetings. County Commissioners Chairman Greg Edds has also given a statement at every meeting that informs attendees of their ability to not participate. Regardless of the ruling, Rowan County s case could be appealed to the U.S. Supreme Court. However, the Supreme Court could decide not to take the case, which could make the Fourth Circuit ruling final. Contact reporter Josh Bergeron at

5 Petitioning a higher power Fourth Circuit judges hear arguments in appeal of ruling that Rowan commissioners prayer unconstitutional JOSH BERGERON/SALISBURY POST ACLU attorney Christopher Brook speaks to reporters in Richmond, Va., on Wednesday after oral arguments in the lawsuit over Rowan County commissioners practices were hard in the Fourth Circuit Court of Appeals. At right are two of the plaintiffs in the case, Rowan residents Nan Lund and Robert Voelker. By Josh Bergeron josh.bergeron@salisburypost.com RICHMOND, Va. A three-judge panel on Wednesday considered whether Rowan County Commissioners violated the U.S. Constitution during opening invocations from 2007 to Attorneys on both sides of Rowan s prayer lawsuit were in federal appeals court Wednesday for oral arguments. It was the first time attorneys have presented oral arguments in the case since the ACLU first filed the lawsuit in 2013 on behalf of three Rowan County residents. More significantly, it s also the first time a federal appeals court has addressed the issue since a 2014 U.S. Supreme Court decision Town of Greece, N.Y. vs. Galloway. Many of Wednesday s arguments hinged on the U.S. Supreme Court s opinion in the New York case. American Civil Liberties Union attorney Christopher Brook, representing the plaintiffs, spent a large portion of his allotted time focusing on the fact that Rowan County commissioners not chaplains or volunteers offered prayers before meetings. Brook also argued that county commissioners coerced members of the public into participating in prayers. Attorney Allyson Ho, representing Rowan County, countered that a prayer giver s identity doesn t matter a chaplain is the same as a commissioner. Ho also said prayers before meetings are constitutionally allowed as long as they don t threaten damnation or demonize others. Both sides also fielded rapid-fire questions from the panel of U.S. Fourth Circuit Court See Appeal, 3 A JOSH BERGERON/SALISBURY POST Rowan County Board of Commissioners Chairman Greg Edds speaks to reporters Wednesday after prayer lawsuit oral arguments in Richmond, Va. JOSH BERGERON/SALISBURY POST Nan Lund, a plaintiff in the Rowan County prayer lawsuit, speaks to reporters Wednesday after oral arguments in Richmond, Va.

6 Appeal Continued from 1A of Appeals judges. Back and forth Ho spoke first during oral arguments. She said legislators at all levels pray before meetings. They have since the nation s founding, she said. It happens in state legislatures, Congress and local government. Ho then presented principles she saw as essential to the case the suit s focus has shifted since it was filed in 2013, and prayer is allowed as long as it doesn t demonize others or preach conversion. She said the court would need to find a pattern of the prayer she described, not just one instance. She had just reached the third of three principles when one of the judges fired off a question a common occurrence during Wednesday s oral arguments. Judges often acted as equal-opportunity interrogators for both attorneys. In response to one of the initial questions, Ho said Rowan County s prayers from 2007 to 2013 the period cited in the lawsuit were 100 percent Christian. Her answer prompted a follow-up question from Judge Dennis Shedd, who asked how the prayers could be considered nondiscriminatory with that statistic. In her response, Ho said the prayers weren t discriminatory because commissioners rotated the responsibility of giving an opening invocation. Another notable exchange between attorneys and judges came when Shedd asked Brook whether a prayer would be unconstitutional if commissioners directed a prayer about members of the military to soldiers who were in the audience. Giving a hypothetical example, Shedd said a commissioner might pray to keep soldiers safe. Brook hesitated as Shedd asked the question again. Brook asked for clarity about the question, which came as Brook was arguing that Rowan County commissioners directed prayers at members of the public. Commissioners prayers during the period in question were not for the benefit of commissioners themselves, Brook said. What if there are troops in the audience and (commissioners are) praying for the troops, Shedd asked. Why is there a difference? Brook eventually said the prayer would be constitutional. Constitutional questions Substantive discussion about the identity of prayer givers and coercion two main topics surrounded moments of fast-paced questioning. Quickly after starting his FILE PHOTO BY JON C. LAKEY/SALISBURY POST. Former Rowan County commissioner Chad Mitchell, center, leads a pre-meeting prayer in 2012, flanked by former commissioners Carl Ford, left, and Jim Sides. The 4th Circuit Court of Appeals heard arguments Wednesday in Rowan County s effort to overturn a federal judge s ruling that local officials leading prayer at public meetings violates the constitution. JOSH BERGERON/SALISBURY POST The U.S. Court of Appeals for the Fourth Circuit in Richmond, Va. oral argument, Brook gave multiple examples of prayer by commissioners. Among the examples was a prayer from former County Commissioner Carl Ford, who said we pray that our citizens will love you Lord. Brook claimed Ford s prayer and others were examples of invocations directed at the public. It countered an argument made earlier by Ho that commissioners only pray for the benefit of themselves. Brook claimed previous court decisions plainly prohibit prayers directed at members of the public. Brook said commissioners direct the public to participate in prayers with statements such as please pray with me. Agee said the statement please pray with me seemed more like a request than a direction. When addressing the issue of identity, Ho said it doesn t matter whether a prayer-giver is a volunteer chaplain or county commissioner. Rowan s case is no different than the Greece, N.Y. case, she said. Either way, it s the government speaking, she said. Judge J. Harvie Wilkinson said one difference between the New York case and Rowan County is that commissioners deliver prayers and invocations repeatedly referencing one faith Christianity. Reaction David Gibbs III, who represents Rowan County, said the next step in Rowan s case will likely be a written ruling. Judges could request more information, but he said it s unlikely. After oral arguments, people on both sides of the case spoke with reporters and outlined significant parts of arguments. ACLU spokesman Mike Meno said it s important not to analyze judges questions too closely. It s a judge s job to ask tough questions, Meno said. Plaintiffs Nan Lund and Robert Voelker, who attended Wednesday s oral arguments, said the fact that commissioners have changed from offering prayers themselves to a pre-selected, volunteer chaplain is an acknowledgment that they re doing something wrong. Currently, Rowan County Sheriff s Office Chaplain Michael Taylor gives opening invocations. County commissioners Chairman Greg Edds also gives a disclaimer at the beginning of meetings. The disclaimer informs attendees of his or her right to leave or not participate in prayers. Gibbs responded to Lund and Voelker s claim by saying he and other attorneys only advised Rowan County how to minimize its liability. A number of options exist for prayer before meetings, and a pre-selected, volunteer chaplain is one, according to Gibbs. Cost to the county Since the start of its prayer lawsuit, Rowan County has been represented by Texas-based National Center for Life and Liberty. The group is representing Rowan County for free. Gibbs said other attorneys from various states also have donated time at no cost to Rowan County to help with the case. Gibbs said the National Center for Life and Liberty brought Ho onto Rowan County s case specifically for oral arguments. Ho is a Texas-based attorney and partner at law firm Morgan Lewis. Although Rowan County isn t paying its attorneys, it could be responsible for legal fees if the U.S. Court of Appeals for the Fourth Circuit upholds a ruling from the North Carolina Middle District Court that found the county s prayer practices unconstitutional. Edds, the chairman of the county board, said Rowan doesn t yet have a commitment to pay legal fees from any outside entity or group. Rowan has paid County Attorney Jay Dees less than $5,000 in connection to the prayer lawsuit. Dees previously told the Salisbury Post that most of the money stems from work one immediately after the lawsuit was filed. Contact reporter Josh Bergeron at

7 Rowan can only wait to learn fate in prayer lawsuit By Josh Bergeron SALISBURY There s not much for Rowan County to do now. It can only wait. More than five months ago, a federal appeals court heard oral arguments in Rowan County s prayer lawsuit, but attorneys on both sides are still waiting to learn judges decision. The case hinges on the fact that Rowan County commissioners not chaplains or volunteers offered sectarian prayers before meetings from 2007 to A group of Rowan County residents filed the suit in 2013 with the help of the American Civil Liberties Union. In 2015, a federal district court ruled that commissioners previous prayer practices were unconstitutional. Although the Rowan County Board of Commissioners contained three new members, its members unanimously voted to appeal the suit to the See Lawsuit, 5 A

8 Lawsuit Continued from 1A Fourth Circuit, where the case currently sits. On July 27, it will be six months from the date of oral arguments. Rowan County s case has been pending for slightly longer than the average amount of time it takes the Fourth Circuit to rule. However, that s not an indicator of a potential outcome, said University of North Carolina law professor Bill Marshall. There are so many different reasons, Marshall said. Judge could be having a difficult time working through the legal issues. Other cases may have come up that demanded more attention. There are not that many tea leaves to read into. One complicating factor: a court decision discussed extensively in Rowan s prayer case still left some things undecided, according to Marshall. He said the case Town of Greece, N.Y. vs. Galloway didn t decide that all legislative prayers were OK. However, the case decided that some factors make legislative prayer OK., Marshall said. Many of the arguments made before judges and contained in court documents hinge on Greece vs. Galloway, a Supreme Court case in which judges decided the Town of Greece could permit volunteer chaplains to open meetings with a prayer. I think, to some extent, the judges now have to work through what the Supreme Court meant in Town of Greece, said Carl Tobias, a University of Richmond law professor and Fourth Circuit Court observer. Tobias said members of the three-judge panel could be trying to convince one another of the merits or faults in particular arguments made in court. To go with the usual time required for legal decision making, judges also appear to be dealing with an increased workload, according to Fourth Circuit statistics. The latest available filing statistics for the current year show a 23 percent increase over the prior year. During the 2015 fiscal year, for example, the Fourth Circuit saw a total of 4,586 filings. The court is also projected to see 5,626 filings during the 2016 fiscal year. The projected 2016 numbers would be the highest in at least 10 years, according to court statistics. The earliest online statistics are for the 2006 fiscal year, when 5,460 cases were filed. That s a lot of workload, said attorney David Gibbs, who is representing Rowan County in the prayer lawsuit. We do know in Washington (D.C.) that they ve been slow to confirm judges on different levels. I think you re also looking at some of the Washington gridlock. Regardless of when the decision comes, Gibbs said the Fourth Circuit s opinion would affect government throughout its coverage area, which includes Maryland, North Carolina, South Carolina, Virginia and West Virginia. The North Carolina AC- LU declined to comment on the Rowan County prayer case for this story. Contact reporter Josh Bergeron at Willie E. Geter Will, it has been 1 year since we watched you be committed unto your father in heaven. We sadly miss you. As your wife my only consolation is knowing that I did my best to keep those vows that we made unto God on our wedding day 28 years ago. We had some sweet times, some not so sweet. I am remembering only the sweet times. I am thankful that I did not have to leave you here to suffer through painful times without having me by your side. While still lonely and empty without you I know for sure that you are with the father, He knew and understood you. The best thing you ever done was to give your life to Christ. Rest on my dear, I ll see you there. Sadly missed by your wife, family, and friends.

9 Appeals court: Rowan prayer constitutional By Josh Bergeron SALISBURY Rowan County commissioners on Monday scored a major court victory when a federal appeals court, by a 2-1 count, overturned a prior ruling in a controversial prayer case. The U.S. Court of Appeals for the 4th Circuit ruled that a lowered court erred when it declared unconstitutional commissioners prayer practices from 2007 to A U.S. Distric Court judge found sectarian prayers at the start of county commissioners meetings to be in violation of the First Ammendment s establishment clause. At issue was the fact that sectarian prayers were delivered only by county commissioners. Writing for the majority, Judge G. Steven Agee said the district court treated the Supreme Court s silence on lawmaker-led prayer as excluding county commissioners from giving opening prayers. In Monday s 4th Circuit ruling, Agee said the lower court ruling is not supportable. Agee wrote that Rowan County s prayer practices from fit within the longstanding tradition of lawmaker-led prayer. Taken as a whole, the county commissioners prayer practices do not coerce or disparage. Agee wrote that the court found no evidence the Board of County Commissioners, as a board, crafted prayers to say before meetings. Instead, prayers were a personal creation. The prayers were also given for the benefit of members of the board, Agee noted. When asked about the decision on Monday, commissioners were short in their remarks. Chairman Greg Edds p r a i s e d the ruling in a short s t a t e m e n t ed to the Salis- Edds bury Post. We are very pleased with the decision and think the Court properly decided the mat- See Prayer, 7 A JOSH BERGERON/SALISBURY POST County commissioners and attendees participate in a prayer on Monday during a meeting at the county administration building.

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A ruling for the county bears unfortunate consequences for American pluralism, for a nation whose very penny envisions one out of many, a nation whose surpassing orthodoxy belongs in its constitutional respect for all beliefs and faiths, a nation which enshrined in the First and Fourteenth Amendments the conviction that diversity in all of its dimensions is our abiding strength, Wilkinson wrote. The ACLU, representing three plaintiffs who a re Rowa n residents, seized Wilkinson s dissent as a reason to seek en banc review where all 15 4th Circuit judges hear the case. Today s ruling is out of step with the F irst Amendment s protection of religious liberty for all, and we will ask the full appellate court to review this decision, said North Carolina ACLU Legal Director Chris Brook. Rowan County residents should be able to attend local government meetings without being coerced to participate in a sectarian prayer or worry that the commissioners may discriminate against them if they do not. Monday s ruling likely won t be the end of the prayer lawsuit. Even if it s denied an en banc review, the ACLU and plaintiffs could appeal to the U.S. Supreme Court. During oral arguments in January, attorneys for Rowan County primarily argued that a prayer giver s identity doesn t matter and that prayers before meetings are constitutional if they don t threaten damnation or demonize others. In his majority opinion, Agee agreed with Rowan County on both points. The content of the commissioners prayers l a r gely e nc o mp a s s e d universal themes, such as giving thanks and requesting divine guidance in deliberations, Agee wrote. There is no prayer in the record asking those who may hear it to convert to the prayer-giver s faith or belittling those who believe differently. And even if there were, it is the practice as a whole not a few isolated incidents which controls. The majority opinion sided with Rowan County on the identity argument is a conceptual world apart from Greece vs. Galloway, a case referenced repeatedly in Monday s ruling and throughout the suit. No one disputes that localities enjoy considerable latitude in opening their meetings with invocations and prayers, Wilkinson wrote. But the legislative prayer practice here pushes every envelope. He implied that the majority treated Rowan s case as more simple than it really is. He also said that judges cannot discern which prayers are primarily for the benefit of legislators or commissioners and which ones are aimed at attendees. He also took issue with the fact that prayers offered by commissioners are entirely Christian. He said entirely christian prayers are one step closer to a de facto religious litmus test for public office. 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11 Dissent in Rowan prayer lawsuit could affect future of case By Josh Bergeron SALISBURY One judge s opinion could have a significant impact on the future of Rowan County s prayer case. By a 2-1 count, federal judges on Monday overturned a lower court ruling and declared county commissioners prayer practices constitutional. Two George W. Bush appointees united to form the majority opinion. It s the dissenting opinion, however, that some law professors are focusing on. Judge J. Harvie Wilkinson III, appointed to the 4th Circuit Court of Appeals by former president Ronald Reagan, offered a cautionary tale about what might happen as a result of a ruling in favor of Rowan County. More than once, Wilkinson has been mentioned as a potential nominee to the U.S. Supreme Court. He also authored the majority opinion in a case relating to Forsyth County commissioners. In that case, also before the 4th Circuit Court of Appeals, federal judges upheld a lower court ruling that the Forsyth Coun- See Prayer, 2 A

12 Prayer Continued from 1A ty Commissioners prayer practices are unconstitutional. Sectarian prayers must not serve as the gateway to citizen participation in the affairs of local government, Wilkinson wrote in the Forsyth County case. To have them do so runs afoul of the promise of public neutrality among faiths that resides at the heart of the First Amendment s religion clauses. His opinion in the Rowan County case echoes similar sentiments. When a seat of government begins to resemble a house of worship, the values of religious observance are put at risk, and the danger of religious division rises accordingly, Wilkinson wrote in the Rowan County decision. This, I respectfully suggest, is what is happening here. It cannot be right. The 4th Circuit s decision, however, found Rowan County s prayer practices from 2007 to 2013 were constitutional after deciding that, among other things, opening invocations fit within the longstanding tradition of lawmaker-led prayer, don t coerce or disparage and were given for the benefit of the board rather than the public. When asked about the 4th Circuit s decision, UNC law professor Bill Marshall says Wilkinson s respected status lends additional strength to the dissent. When J. Harvie Wilkinson speaks, people listen, Marshall said in an interview with the Salisbury Post. It was written very well. It was a serious, scholarly dissent. University of Richmond law professor Carl Tobias says Wilkinson is certainly not just another judge. Wilkinson served as chief judge for the 4th Circuit Court of Appeals from 1996 to The ACLU, which sued commissioners on behalf of three Rowan residents, has already announced its intention to seek an en banc review involving all 15 4th Circuit judges instead of the three that have already reviewed Rowan s case. Marshall said Wilkinson s opinion could have an affect on an en banc review, if granted. Tobias says Wilkinson s view is likely to prevail in front of all 15 judges. I think that Wilkinson was more persuasive, Tobias said. I think he makes a lot of really valid points about what it means to be a minority or a member of a minority religion. If the 4th Circuit Court of Appeals grants an en banc review, however, it SALISBURY would be a rare occurrence. The court grants rehearing en banc in about 0.3 percent of cases where it s requested, according to the 4th Circuit Court s website. I think (the ACLU) has a good chance of having it granted, but that doesn t mean the plaintiffs will win, Tobias said. Currently, the 4th Circuit Court of Appeals consists of six Obama appointees, three George W. Bush appointees, three Clinton appointees, one George H. W. Bush appointee and one Reagan appointee. The current chief judge Roger Gregory was appointed by former President Bill Clinton during a recess of the U.S. Senate. Gregory was later renominated by George W. Bush. If the 4th Circuit declines the en banc request, Rowan s prayer case could also be appealed to the U.S. Supreme Court. The composition of the U.S. Supreme Court will be relevant in whether the highest court takes up the case, according to Marshall and Tobias. One seat on the Supreme Court remains vacant following the death of Justice Antonin Scalia. Contact reporter Josh Bergeron at Retired Rowan County teachers TELL ALL THE SECRET CARDS By Wilma & Linda Wilma and Linda create THE SECRET CARDS combining fifteen years of accumulations composing broken rules, stories heard, observed some even witnessed, & yes, a few stories from one, two, three generations ago. Thanks to cooperation of those privately surveyed. At Amazon.com and a local book store AUTO HOME LIFE