Battle over prayer at VMI heats up

By Jon Dougherty

A Kentucky lawyer says the doctrine of “military necessity,” not political correctness, should guide policies regarding prayer at one of the nation’s oldest military schools, especially as war with Iraq looms large on the horizon.

“America’s military must not be plowed under by the ‘politically correct,’ with the drums of war pounding,” says Crestwood, Ky., attorney and retired Marine Col. Ronald D. Ray, speaking about the age-old practice of hearing a mealtime prayer at the Virginia Military Institute.

The American Civil Liberties Union filed suit in May 2001 in federal court in Lynchburg against VMI after a pair of cadets, Neil Mellen and Paul Knick – then both juniors at the military college – objected to the saying of a prayer before evening meals. According to tradition, the entire VMI student body cannot be seated for supper until the student chaplain leads them in a prayer provided by the school.

“These prayers violate our nation’s tradition of religious freedom,” said Kent Willis, executive director of the ACLU of Virginia. “At a state school, VMI cannot make prayer a condition for eating dinner or any other activity.”

VMI Superintendent Maj. Gen. Josiah Bunting III was named as defendant in the suit.

In January, U.S. District Judge Norman K. Moon ruled in favor of the cadets, ruling that “because of the intense, coercive environment created by the Institute’s adversarial method, under which students are instructed to ‘subordinate [their] own personal desires and well-being to the good of the whole unit,’ the primary effect of this practice has been to compel students to participate in a state-sponsored religious exercise.”

“Because the prayers are drafted and recited at the direction of the Institute’s superintendent, the result is that government has become impermissibly entangled with religion,” Moon wrote in his decision.

But the school appealed, and a pair of military support groups – the Coalition of American Veterans and the Naval Aviation Foundation say Moon used a standard appropriate for “public civilian colleges” but not for private military schools, according to an amicus brief authored by Ray.

“In other words, the district court treated this case as one involving the application of the Religious Clause of the First Amendment in the context of a civilian public college or university,” said the brief, which was filed on behalf of both groups in the Fourth U.S. Circuit Court of Appeals in July.

“A different set of standards have always applied to civilian institutions,” Ray told WorldNetDaily in an interview. In this case, however, VMI was treated “as though it were just another college, when in fact, it’s not.”

Ray said the appeal centers around VMI’s role as part of the nation’s overall national defense structure. Indeed, he said, the cadets who attend the school are – under Virginia statutes – part of the state’s duly authorized military force.

“Virginia code … makes VMI cadets members of the Virginia Militia; Reserve Officer Training Corps training is mandatory for every cadet,” Ray wrote. “Therefore VMI is a part of America’s national defense establishment, training future officers as ‘citizen soldiers,’ and it is entirely appropriate for VMI to receive state funds, as all military officer training is at government expense.”

However, the ACLU says because the school receives at least some public funds, it cannot be seen as supportive of a particular religion, though that is a point of primary contention in the appeal.

“The ACLU has brought this matter to court as a First Amendment case, and most courts and lawyers today would agree,” said the brief. But, it argues, since service in the U.S. military is a voluntary duty “because it requires great sacrifice, even possible death,” and because there is no inherent right to serve in the armed forces, the VMI case should be treated differently.

“The Constitution places the nation’s armed forces under the civil authority and jurisdiction, not of the judiciary, but of the Congress, and then the president, when properly acting as commander in chief,” the brief says. “U.S. courts consistently defer to the judgment of military leadership under the doctrine of ‘military necessity.'”

In the brief, Ray pointed out that the U.S. Supreme Court ruled in 1955 that “judges are not given the task of running the Army,” and again in 1983, “centuries of experience have developed a hierarchical structure of discipline and obedience to command, unique in its application to the military establishment and wholly different from civilian patterns. …”

The retired Marine colonel also argued that the two VMI cadets, “who voluntarily became members of the VMI Corps of Cadets,” improperly took the matter to court, “as if they were students in a public college,” undermining “the good order and discipline of those senior to them. …”

“They had another remedy,” he told WorldNetDaily, explaining that the two cadets could have applied for “conscientious objector” status. “The school either would have granted it – in which some accommodations would have been made – or VMI would have simply said ‘sorry,’ and discharged them.”

Ray said all briefs in the case on both sides were filed with the appeals court by Sept. 11, adding that oral arguments would likely begin sometime this winter. He said he didn’t expect a decision before next spring.

The former Marine officer also said he believes the facts of the case, as he has argued, are worrisome to his courtroom opponents.

“Interestingly, the ACLU has been reinforced,” he explained. “The American Jewish Committee, Americans United for Separation of Church and State, B’nai B’rith and other groups have also filed briefs” in support of the ACLU position.

“When the ACLU brings in other ‘heavy hitters,’ you know it’s important for them to win it,” Ray said, adding that he thinks ridding other military academies of mealtime prayers is the ultimate goal.

In April, the Washington Times reported that the mealtime prayer at the U.S. Naval Academy in Annapolis, Md., may also cease if the Fourth Circuit upholds the lower court’s earlier ruling.

“Naval Academy officials say they have begun a review of the legality of its lunchtime prayers,” the paper reported, which “have been a tradition at the academy for years, probably since the school opened 157 years ago.”

Ray added that the U.S. Air Force Academy in Colorado was also anticipating the appellate court’s ruling.

“When I was growing up, whenever anything was deemed hopeless, they would say that person or team or group or ship ‘doesn’t have a prayer,'” he said. “At a time of crisis, that all these groups would be attacking the notion of prayer is stunning, in terms of boldness and its un-American flair.”

Previous stories:

ACLU threatens suit to stop mealtime prayer

Appeal of VMI prayer ban planned

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