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Monday, April 26, 2004

Justice Antonin Scalia blasted his colleagues for refusing to hear the case and argued that it raised important church-state questions. Leaving those issues unresolved is unfair to Virginia Military Institute, Scalia wrote in a dissent joined by fellow conservative Chief Justice William H. Rehnquist.

The three most liberal justices then wrote their own explanation for why the high court should stay out of the case.

VMI, part of the state university system in Virginia, lost a previous Supreme Court battle over its all-male admissions policy. The high court forced VMI to admit women in 1996, as Scalia noted dryly in his dissent Monday.

"VMI has previously seen another of its traditions abolished by this court," he wrote. "This time, however, its cause has been ignored rather than rejected - though the consequences will be just the same."

VMI's nightly prayers were recited by a student chaplain after cadets march into the mess hall. The prayers, one for each night of the week except Saturday, mentioned God but not Jesus or other religious figures. All the prayers concluded with the phrase, "Now, O God, we receive this food and share this meal together with thanksgiving. Amen."

VMI's students, called cadets, were not required to recite the daily prayer, or even to listen to it, lawyers for the school argued in asking the Supreme Court to intervene. Virginia Attorney General Jerry Kilgore also argued that the ruling against VMI threatened prayers at other institutions, including the Pentagon and the Naval Academy.

"This far-reaching decision ... disregards the fact that prayer before meals, and prayer in military ceremonies, are part of the fabric of our society," Kilgore argued.

It takes the votes of four justices to agree to hear an appeal. The written, back-and-forth comments among the justices that were released Monday shows that, at most, Scalia and Rehnquist collected just one additional vote to hear the case.

The justices in the court's ideological middle, Justices Sandra Day O'Connor and Anthony M. Kennedy, did not reveal why they did not want to hear the case. Justice John Paul Stevens said although the case raised important issues, it had significant procedural and other problems.

A Phrase Not Found in the Constitution

The 4th U.S. Circuit Court of Appeals found that VMI's suppertime prayers violated the principle of separation of church and state. In its ruling last year, a three-judge panel of appeals judges pointed to VMI's military culture of "obedience and conformity."

"In this context, VMI's cadets are plainly coerced into participating in a religious exercise," the appeals judges wrote.

The full Richmond-based appeals court later divided 6-6 over whether to reconsider the panel's ruling. The tie vote meant the panel's ruling stood.

The case arose when two cadets asked the school to change the prayer ceremony, and sued when VMI refused. American Civil Liberties Union represented the students.

"In short, these are official school prayers," ACLU lawyers argued to the Supreme Court. "It is difficult to see how the school could not be seen as endorsing the religious sentiments expressed in them."

Retired generals, admirals and former senior civilian military leaders were among VMI supporters who urged the Supreme Court to hear the case.

"The U.S. military shares with VMI a venerable tradition ... of including nonsectarian religious elements in its ceremonies and other military activities," former Joint Chiefs of Staff Chairman Gen. Hugh Shelton and the others wrote.

That tradition predates the First Amendment, which says there must be no government "establishment" of religion, the former military leaders told the Supreme Court in a friend of the court filing.

The case is Bunting vs. Mellen, 03-863.

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