Circuit Judge Robert King, writing for the unanimous panel, rejected former VMI Superintendent Joseph Bunting’s argument that sponsoring a daily prayer during dinner (in a mess hall where nearly all students attend) effectively amounted to a state endorsement of religion. Two VMI students sued General Bunting, individually and as superintendent when he refused to abandon the supper prayer. These two students have since graduated VMI, which raised the issue of mootness before the Fourth Circuit. Judge King’s opinion answered that question as well as the underlying constitutional issue:
Because the Plaintiffs have now graduated from VMI, their claims for declaratory and injunctive relief are moot, and we vacate the district court’s judgment insofar as it awarded such relief. In assessing the Plaintiffs’ claim for damages, we agree with the district court that the supper prayer violates the Establishment Clause of the First Amendment, but that General Bunting is nevertheless entitled to qualified immunity.
It’s surprising VMI even contested the constitutional issue on appeal. Sponsoring an overtly Judeo-Christian prayer is suspect under normal circumstances. In the context of a military academy, which places great emphasis on social conformity and unit cohesiveness, the “supper prayer” was obviously a coercive attempt to inculcate religious values onto students. There is no other public college in Virginia which could ever get away with this, and VMI is certainly not entitled to any special constitutional waiver.
VMI’s only real defense was that the prayer reflected the school’s tradition and values. The Court noted General Bunting’s belief that the supper prayer "is a precious link to our heritage and an admirable practice for a school of our provenience and culture." As to the law, General Bunting’s attorneys cite Marsh v. Chambers, a 1983 Supreme Court decision upholding the right of legislative bodies to open their sessions with a prayer. Judge King’s opinion rejected any legal similarity between Marsh and General Bunting’s case:
General Bunting first suggests that we should view the prayer as a uniquely historical practice, in an approach similar to that employed by the Supreme Court in Marsh. In Marsh, though, the Court was specifically influenced by the fact that, in September of 1789, members of the first Congress voted to submit the First Amendment to the states in the same week that they voted" to appoint and to pay a Chaplain for each House" of Congress. In upholding the Nevada practice, Chief Justice Burger reasoned:"[t] his unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged."
(Note: Judge King incorrectly describes Marsh as dealing with the Nevada legislature. In fact, the case dealt with the practice of Nebraska’s unicameral legislature.)
Marsh applies only to limited circumstances where the Framers’ intent could unmistakably be determined. These circumstances, however, do not include VMI’s supper prayer, for as Judge King notes:
Put simply, the supper prayer does not share Marsh’s "unique history." In fact, public universities and military colleges, such as VMI, did not exist when the Bill of Rights was adopted.
This is the money line of the entire opinion. Although Judge King does not belabor this point, it is nevertheless a critical identification. Many supporters of expanding religious expression in the public sphere—especially government schools—cite their interpretation of America’s founders as amicable towards the intermingling of church and state. Lost in this argument is the simple fact that the government created in 1788 was never intended to include many of the institutions created since that time. Government schools are foremost among these constitutionally illegitimate institutions.
In the absence of government-run schools, cases like this one never occur. Nobody would seriously question the right of a wholly private institution to require prayer, or any other religious exercise, as part of its curriculum. Thus, the VMI case should not only teach us a lesson about the separation of church and state, but a lesson about the separation of school and state as well.