- The Washington Times - Tuesday, June 5, 2001

Mark L. Earley, in his last official act as state attorney general yesterday, defended the Virginia Military Institutes tradition of saying dinnertime prayers, which the state chapter of the American Civil Liberties Union has filed a lawsuit to end.
Issuing the states response to the ACLU lawsuit, Mr. Earley said the prayers do not breach the U.S. Constitutions separation of church and state and are not forced upon VMI cadets.
The "ACLU contends that these prayers — so clearly compatible with the Constitutions establishment clause in the eyes of the Founders — must now be banned as unconstitutional," Mr. Earley wrote in a brief filed yesterday in U.S. District Court in Lynchburg, Va. "The ACLU is mistaken. Not every expression of religious sentiment in a public setting involves an establishment of religion."
Mr. Earley, who resigned yesterday to campaign full time for Virginia governor as a Republican, said George Washington often made proclamations using the words "Almighty God," saying that Virginia and the United States have always used prayers as part of official business.
He said the mere utterance of the word "God" does not indicate government sponsorship of a particular religion.
VMIs dinnertime prayers have been a tradition at the 162-year-old military academy in Lexington since Thomas J. "Stonewall" Jackson taught there. The prayers mention God, but not Jesus Christ or any other religious figure.
Rebecca K. Glenberg, legal director for the ACLUs Virginia chapter, said the school and the state are not only endorsing religions invoking a Judeo-Christian God, but also coercing the cadets into listening to the prayers.
"The problem is that the older students, even if not officially required to attend these meals, as a practical matter they do have to attend, because as VMI has admitted, they are required to pay a room and board fee that includes those mess-hall fees, and they dont get what they paid for when they dont attend the mess-hall dinners," Miss Glenberg said.
The case is now in the discovery phase, in which both sides gather evidence to support their claims.
The Virginia chapter of the ACLU filed the lawsuit last month against VMI Superintendent Maj. Gen. Josiah Bunting III on behalf of two cadets who complained about the prayers. Mr. Earley had represented Gen. Bunting because VMI is a state college; acting Attorney General Randolph A. Beales will continue representing the VMI superintendent.
Since the 1950s, the prayers have been part of the formal dinner that only the freshmen, or "rats," are compelled to attend. Sophomores, juniors and seniors do not have to attend the evening meal. Those who do are required to stand while a "cadet chaplain" recites one of several prayers. The cadets do not have to bow their heads or fold their hands.
In his brief, Mr. Earley said VMIs mealtime prayers are part and parcel of the schools tradition and reflect the beliefs of the Founding Fathers that religion should play a role in the development of citizens.
"This is especially so at a military college like VMI, where the original intent of the Founders is reinforced by principles of academic freedom and by the importance of accommodating the religious needs of cadets," he said.
The two cadets who complained — Neil Mellen of Los Angeles and Paul Knick of Woodbridge, Va. — originally lodged their complaint with school officials last winter, saying they found the prayers offensive. Mr. Mellen, who was raised as a Catholic, and Mr. Knick, a Lutheran, said they attend church, but that their religious preference should remain a personal affair and not something that institutions like VMI can interfere with.
Both cadets are now seniors.
The ACLU first wrote to Gen. Bunting Feb. 28 to tell him VMI should immediately stop the prayers, saying they are unconstitutional. Gen. Bunting and Mr. Earley refused, setting up the lawsuit filed by the ACLU on May 9.
"The supper prayers said at VMI are much like prayers and statements found in Congress, in our courtrooms, on our nations currency, in numerous patriotic songs, and in other aspects of our national life," Gen. Bunting said in a statement. "VMI cadets are not compelled to participate in this prayer, nor stand at attention … to offer thanks at the close of a busy day, particularly at a military college, is a practice that we believe is constitutional and should continue at the Virginia Military Institute."
Miss Glenberg said there is not much she or the state disagree about when it comes to the facts of the case, except that the ACLU contends that prayers are unconstitutional.
"Even if they werent being coerced to participate in this prayer, coercion has never been a requirement in an establishment case," Miss Glenberg said. "Rather, the act is unconstitutional if the state or a government is sending a message of approval or endorsement of religion."
The state-supported military academy, which recently graduated its first class of female cadets, was forced to accept women after a 1996 Supreme Court decision.


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