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Dissent in Rowan prayer lawsuit could affect future of case

By Josh Bergeron

josh.bergeron@salisburypost.com

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 County 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 2003.

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 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 704-797-4246.

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