Academics weigh Supreme Court’s chances of taking Rowan case

Published 12:10 am Sunday, October 1, 2017

By Josh Bergeron

SALISBURY — U.S. Supreme Court justices won’t be as united as county commissioners when deciding whether to accept an appeal of Rowan’s prayer lawsuit.

Last week, Rowan County commissioners unanimously voted to appeal the latest ruling in their prayer lawsuit to the U.S. Supreme Court. Now, they’ll wait to see whether the court takes the case or allows the 4th Circuit’s 10-5 decision stand. The 4th Circuit ruled prayers offered from 2007 to 2013 were unconstitutional.

Asked about the case, Catawba College politics professor Michael Bitzer and UNC law professor Bill Marshall said it’s not certain that the Supreme Court will accept the appeal. For that to happen, four of the nine justices would need to vote to accept the case.

Bitzer said it’s more likely than not that the Supreme Court will accept Rowan County’s case. Meanwhile, Marshall said it’s equally possible that the court could let the 4th Circuit’s case stand.

“I think there is a debate over the legality of these prayers nationwide, and I think the justices may think it’s time for a review, that there’s a disagreement they need to clarify,” Marshall said. “It’s also possible that they could not do that.”

The disagreement in need of clarifying is what’s known as a circuit split, which increases chances of the Supreme Court accepting the case. Months after the 4th Circuit found Rowan County’s prayer practices to be unconstitutional, the 6th Circuit found prayer practices in similar case in Michigan — Bormuth Vs. County of Jackson — to be constitutional. The cases are not identical, but bear striking similarities.

One difference, for example, is that the citizen who brought the case is representing himself. The Rowan County residents who initially sued Rowan County are represented by the N.C. American Civil Liberties Union.

“I think there’s a pretty good chance that in the new term the court could take one or both cases,” Bitzer said. “Usually when there is a circuit split, when two circuits ruled differently on the same issue, it bumps up the likelihood.”

Supreme Court justices could see the two prayer cases as a chance to offer national clarity on the constitutionality of public prayer, he said.

Bitzer said Justice Anthony Kennedy could be a swing vote in the decision on Rowan’s case.

It’s possible that the Supreme Court could accept Rowan County’s case before the end of this year and schedule oral arguments in spring 2018, Bitzer said.

Marshall raised another another possibility — only a few years have passed since the 2014 Supreme Court ruling in Greece vs Galloway, when justice ruled it’s constitutional to allow volunteer chaplains to offer opening invocations.

“It could could either way,” Marshall said. “I think it’s still not that long since Town of Greece and they may want a little bit more time to elapse.”

He said judges could look at the fact that the 6th Circuit’s case involves a person representing himself and decide it has a “flimsier record” or that it’s not as well researched.

Only 100 to 150 cases are accepted each year. Meanwhile, the court is asked to review more than 7,000 cases each year.

If the Supreme Court accepts Rowan County’s case, it would mean the case made it further through the court system than a 2012 suit against Forsyth County commissioners. In that case, the court declined to hear Forsyth County’s appeal of a 4th Circuit ruling. Forsyth County’s case ended with a 2-1 decision by a three-judge panel that commissioners’ prayers were unconstitutional.

In 2012, the Winston-Salem Journal reported that Forsyth County paid about $200,000 in legal fees to the ACLU as a result of their prayer lawsuit. Attorney David Gibbs says Rowan County commissioners could pay about $300,000 in legal fees if the Supreme Court declines to hear their case.

There’s, perhaps, only one certainty with the Supreme Court’s upcoming decision.

“If this is one of the cases the court takes, it will certainly be something I’m teaching in my constitutional law class for a long time,” Bitzer said.

Contact associate editor Josh Bergeron at 704-797-4246.