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Rowan prayer ruling could come in two to three months

Tobias

tobias

Tobias teaches constitutional law at the University of Richmond, which is in Virginia.

Predicting when a federal appeals court will render its ruling in Rowan’s prayer case remains a difficult task, but past performance suggests a decision could be issued in two to three months, according to University of Richmond law professor Carl Tobias.

A three-judge panel in the U.S. Fourth Circuit Court of Appeals on Wednesday heard oral arguments in Rowan’s prayer case. Tobias, who teaches constitutional law and follows the court’s decisions, said the court usually issues its decisions within three months. After that, it’s unclear whether the appeals court would approve an en banc session — a hearing before all the Fourth Circuit judges at once. Tobias said the U.S. Supreme Court may not accept an appeal in Rowan’s prayer lawsuit.

The recent 2014 Supreme Court decision in Town of Greece, N.Y., vs. Galloway is a significant reason to believe the highest court will wait to take up another, similar case, Tobias said. In the New York case, the Supreme Court OK’d volunteer chaplains delivering prayers.

“I think they’ll let it bubble up before they re-enter that thicket,” he said about the Supreme Court. “My bet is they won’t take up this issue again for maybe a half decade or a decade.”

After Wednesday’s oral arguments, Tobias discussed a number of issues related to Rowan’s prayer case.  In courts across the country, he said prayer is generally a difficult issue to decipher.

“It’s been a hot-button issue for as long as I’ve been alive,” he said. “I just find the public prayer issue to be particularly difficult for courts to address because the guidance is very general.”

He used Joyner vs. Forsyth County as an example of where court decisions on prayer conflict. In Forsyth County’s case, sectarian prayers were ruled unconstitutional. In the Greece, N.Y., case, Supreme Court justices decided sectarian prayer was allowed at the start of meetings.

An argument in Rowan’s case is whether the prayer-giver’s identity matters. Coercion — whether Rowan County commissioners forced or persuaded meeting attendees to participate — is another major argument in the case.

Tobias said it’s difficult to gauge how judges in the U.S. Court of Appeals for the Fourth Circuit might rule. Both sides on Wednesday expressed confidence immediately after oral arguments. Some have pointed out that the three judges who heard Rowan County’s case — J. Harvie Wilkinson, Dennis Shedd and G. Steven Agee — were Republican appointees.

Tobias said he’s reluctant to look at the appointing president as a determining factor in a case.

“If you think conservatives favor public prayer, then the reality is that it’s a tough panel for the plaintiffs,” he said. You’ve got three Republican appointees, two of which are pretty conservative.”

During Wednesday’s oral arguments, Wilkinson said he was troubled by the combination of prayers being 100 percent Christian and Rowan County commissioners giving prayers before meetings.

Tobias said the appeals court’s decision could depend on whether Wilkinson tries to convince another judge to affirm the North Carolina Middle District Court’s opinion. Late last year, Judge James Beaty in the Middle District Court ruled that Rowan’s prayer practices were unconstitutional. Tobias said Beaty’s ruling, based on the prayer-giver’s identity, is defensible in court.

“I think he may be affirmed,” he said about Beaty’s ruling.

Rowan County will likely know the court’s decision in early spring, Tobias said. At that point, either side could ask for all judges on the appeals court to hear the case.

About 3,800 cases have been up for an en banc hearing, according to the most recent compilation. Tobias said the court has granted fewer than 10 of the requests. The Supreme Court also has a low chance of taking up the case, according to Tobias.

Contact reporter Josh Bergeron at 704-797-4246.

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