Fourth Circuit Rules Prayer ‘Unconstitutional’     4/30/2003
By Tom Jipping, Senior Fellow for Legal Studies

Court says Virginia Military Institute must stop prayer before supper.

On April 28, the U.S. Court of Appeals for the Fourth Circuit ruled that the tradition of voluntary supper prayer at the Virginia Military Institute (VMI) is an unconstitutional “establishment of religion.” The unanimous decision for a three-judge panel was written by Judge Robert King, an appointee of President Bill Clinton. The Fourth Circuit covers North and South Carolina, Virginia, West Virginia and Maryland. The court sits in Richmond, Virginia.

It's not the first time a court has addressed VMI affairs. In 1996, the U.S. Supreme Court declared unconstitutional the all-male admission policy at the military school, founded in 1839. In this case, two cadets filed suit in 2001 to stop the reading of a prayer before supper in the VMI mess hall each evening. As the appeals court described it, cadets “must remain standing and silent while the supper prayer is read, but cadets are not obliged to recite the prayer, close their eyes, or bow their heads.”

The appeals court based its decisions on recent Supreme Court decisions, rather than on the original meaning of the Constitution itself. This trend of disregarding the Constitution’s intended meaning in favor of the Supreme Court’s preferred meaning has resulted in many decisions eliminating religious speech or symbols from many public settings.

Had the appeals court followed the First Amendment’s intended meaning, the court would have upheld VMI’s voluntary supper prayer. The same first Congress that proposed the First Amendment also enacted legislation requiring that military academy cadets attend church services and recite mealtime prayers. Instead, the appeals court concluded that requiring VMI cadets to be in the mess hall when the prayer is read amounted to compelling them to “participate in a religious activity.”

One of the three judges deciding this case actually sits on the Third Circuit, which sits in Philadelphia, Pennsylvania. Critics of the obstruction campaign against President Bush’s judicial nominees have noted that appeals court vacancies result in judges from other circuits sitting temporarily, or “by designation.” Three of the Fourth Circuit’s 15 full-time positions are vacant and Senate Democrats have prevented a Judiciary Committee hearing on one Bush nominee for nearly two years. The same day as this decision was handed down, President Bush made nominations to the remaining Fourth Circuit vacancies.

Virginia Attorney General Jerry Kilgore says he will ask the full Fourth Circuit to reconsider the decision.

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