By Kent Willis, Executive Director, ACLU of Virginia
The twelve judges of the Fourth Circuit Court of Appeals in Richmond set off a firestorm of criticism from conservative groups last month when, on a close vote, they upheld the ban on official mealtime prayers at VMI. Considered the most conservative appellate court in the nation, it is somewhat of a mystery how the judges could have elicited so much scorn from those who purportedly share their views.
Prior to the full Court of Appeals’ decision, a federal judge in Lynchburg and a three-judge panel of the same appellate court found that the prayers, composed by VMI officials and read by students before evening meals, were state-endorsed religious activities in which students were pressured to participate. That, the judges said, amounted to a violation of separation of church and state.
Because there are no new legal precedents in this case -- the court merely applied time- tested establishment clause jurisprudence to the particular circumstances at VMI -- critics have focused on the judges’ interpretation of the facts.
The judges found first that the content of the prayers was religious. Much has been made of the benign nature of the invocations, especially the fact that they are nonsectarian. What is wrong with school-sponsored prayers, critics ask, if they are watered down to offend no particular religion?
The courts have long interpreted the establishment clause to mean that the state may not promote religion in general, not just a particular religion. Although some cases addressing the finer nuances of separation of church and state may hinge on whether or not the expression in question is sectarian, in the vast majority of cases that is irrelevant. Some utterers of grace thank Jesus Christ for our bounty; others thank God. One is sectarian; the other, like the VMI prayers, is not. But both are unequivocally religious exercises.
In addition, there is no such thing as a completely nonsectarian prayer. In our nation, most people practice within the Abrahamic tradition, comprised of Christians, Jews and Muslims, but we are also Hindus, Buddhists, Wiccans and scores of other faiths, each with its own set of beliefs and practices. No prayer, no matter how universal, can give equal credence to all these religions. And when the government, with its great weight, leans toward some religions, it automatically leans away from others, undermining the goal of religious equality.
The court also found that students at VMI were under considerable pressure to participate in the prayer exercise. Critics claim that VMI’s cadets are able adults who can make independent decisions whether or not to be involved.
But this is not what the district court judge or the three appellate court judges concluded. After depositions, a trial and numerous legal briefs from both sides, they ruled unanimously that VMI is perhaps unique among public universities in its determination to instill conformity on campus. It is a place in which students flourish by following the smallest of rules and obeying the subtlest of orders, and where they founder when they do not. Thus, when VMI says or even implies “line up for the mealtime prayer,” students interpret that, rightly, to mean “line up for the mealtime prayer.”
Our government is a secular institution and so are our government-supported schools, but that does not impede religious expression. We enjoy a constitutional guarantee of free exercise of religion and the protection of laws that prevent discrimination against us because of our religion, that require some accommodation of our particular religious beliefs, and that allow us to worship wherever we choose. As a result, just as our founders intended, we have become the most religiously diverse and free nation in the history of the world.
The Constitution does not restrict free exercise of religion at VMI. VMI has a chapel on campus for students who choose to attend religious ceremonies, and a chaplain to deliver sermons and offer spiritual guidance to students who want it. If it wished, VMI could permit students to meet for religious purposes anywhere and anytime they want, including organizing themselves for prayers at mealtime.
What VMI, a taxpayer-supported institution, cannot do is compose official school prayers, orchestrate the event where those prayers are to be presented, and then pressure cadets to attend.
The conservative Fourth Circuit Court of Appeals understands that this case is about keeping the heavy hands of the state from groping around in the private corners of our minds where we are supposedly free to make our most personal decisions on matters of faith. Why conservative groups, which traditionally have opposed the intrusion of government into our private lives, do not agree with this decision remains a mystery.
