Rowan can only wait to learn fate in prayer lawsuit

Published 12:10 am Sunday, July 10, 2016

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 2013. 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 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. “Judges 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 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 ACLU declined to comment on the Rowan County prayer case for this story.

Contact reporter Josh Bergeron at 704-797-4246.