Constitutional, theological issues raised in VMI mealtime prayer case

By J. Brent Walker

Reflections
May 2004

The U.S. Supreme Court recently declined to review a decision of the 4th U.S. Circuit Court of Appeals in Richmond, which had held that Virginia Military Institute's practice of mealtime prayers violated the First Amendment's Establishment Clause. Usually a "certiorari denied" — lawyer talk for the Court refusing to review a lower court decision — is not particularly noteworthy. These orders are not regarded as approving the lower court decision and generally have no precedential effect. Usually they don't even merit a written opinion. And the Supreme Court issues thousands of these orders each term.

However, this one — Virginia Military Institute vs. Mellen — is unique and interesting for several reasons.

First, Justice Antonin Scalia, joined by Chief Justice William Rehnquist, wrote a vigorous dissent from the denial. This is highly unusual. Rarer yet, Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg and Stephen Breyer, wrote an opinion in response explaining the Court's refusal to review the case.

The Court usually exercises its discretion to review a case when it is needed to clear up conflicting decisions of lower federal courts. Justice Scalia correctly pointed out two 1997 cases from the 6th and 7th circuits upholding the practice of commencement prayers at state colleges and universities. He reasoned that those decisions sufficiently conflicted with the 4th Circuit's ruling in the VMI case to justify granting review.

In response, Justice Stevens opined that there was no conflict here because the cases were quite different. He drew a distinction between annual ceremonial prayers at commencement exercises with daily mealtime prayers in a state-run military academy. He observed that the characteristics of VMI — "its emphasis on submission and conformity" — distinguish it from the more traditional institutions of higher learning. Even though the students did not have to recite the words, they were required to be present and listen to the prayer.

Second, this case reminds us that constitutional principles must be applied in concrete fact situations. And, particularly in church-state cases, context is all-important. It is true that ceremonial graduation prayers at state colleges and universities are generally tolerated, while similar prayers have been declared unconstitutional in public middle and high schools. The Supreme Court, in Lee vs. Weisman (1992), struck down a middle school commencement invocation and benediction given by a Jewish rabbi because of their coercive effect on those who chose to attend. And, although such coercion is usually not present to the same extent in higher education, the 4th Circuit — one of the most conservative appeals courts in the land — ruled here that such coercion was present. The 4th Circuit panel wrote: "VMI's adversative method of education emphasizes the detailed regulation of conduct and the indoctrination of a strict moral code. ... VMI cadets are plainly coerced into participating in a religious exercise." So, the military environment and pressure to submit and conform made this case more like Lee vs. Weisman than the typical college ceremonial prayer case.

Finally, the VMI case provides an opportunity for people of faith to ponder the theology of prayer and the risks associated with government sponsorship or encouragement of religion exercises. (See Andrew Daugherty's article on page 6 of this issue).

People of faith understand that any state-sponsored coercion, however mild, violates principles of religious liberty and First Amendment protections. Coerced prayer simply is an oxymoron; for prayer to be prayer, it must be completely voluntary. Although in this case the prayer was delivered by a "student chaplain," not college officials, and although the prayers were allegedly "non-denominational" (itself a theological oxymoron), the 4th Circuit was correct in understanding that there was sufficient coercion to conform in this case to trigger an Establishment Clause violation.

The 4th Circuit's decision, of course, does not ban grace before meals even at VMI. The way to solve the issue is pretty easy. Why not simply have a 30-second moment of silence before meals to allow students who choose to do so to pray each in his or her own way? Then you have a win-win situation. College officials would be accommodating the practice of voluntary student prayer, but at the same time avoid endorsing a watered-down, one-size-fits-all blessing. Most importantly, it would eliminate the coercive environment that is so antithetical to genuine, heartfelt prayer.