Two of the Supreme Court’s most conservative members delivered an unusual public rebuke to more liberal justices yesterday, accusing them of ducking an important church-state fight over mealtime prayers at the Virginia Military Institute.
Justice Antonin Scalia, joined by Chief Justice William H. Rehnquist, said the court should have taken the case in order to answer whether its ban on school-sponsored prayer for young children and high schoolers applies to college students as well.
Justice Scalia delivered a polite but blunt critique of what he suggested are flimsy reasons for avoiding an appeal on behalf of VMI, the only military college that is part of a state university system.
The VMI case also gave the court an opportunity to rule on the constitutionality of traditional religious observance in military institutions, Justice Scalia said.
“The weighty questions raised by petitioners … deserve this court’s attention,” he wrote in protest.
Writing separately, Justice John Paul Stevens countered that the VMI case might be important, but suffers from procedural and other problems. He said Justice Scalia is “quite wrong” in his characterization of why the court rejected the case. Justices Ruth Bader Ginsburg and Stephen G. Breyer joined Justice Stevens.
The court chooses to hear only a small percentage of the cases sent to it. By tradition, at least four justices must agree that a given case is worthwhile. The justices vote behind closed doors.
With the Supreme Court rebuff, the ruling of a lower court stands. That court said the nightly prayers violate the Constitution’s ban on state promotion of religion.
The court already is considering a major case about religion in schools. Justices are expected to rule by summer on whether the wording of the Pledge of Allegiance, which refers to “one nation under God,” can be recited legally in public schools.
At VMI, the mess-hall prayers, one for each night of the week except Saturday, were recited by a student chaplain. The prayers concluded with the phrase, “Now, O God, we receive this food and share this meal together with thanksgiving. Amen.”
Two cadets asked the school to change the prayer ceremony. They sued when VMI refused.
Since the 1960s, the Supreme Court has outlawed official prayer in a variety of public-school settings, including classrooms and at high-school graduations. The court has pointed to the special circumstances of grade schools and high schools, with their many rules, enforced attendance and young pupils.
By contrast, college students are usually adults and attend school by choice.
The state of Virginia asked the high court to reinstate a decades-old VMI practice of saying grace before the evening meal.
The school was the subject of a previous, hard-fought Supreme Court case over its all-male admissions policy. VMI lost that case in 1996, as Justice Scalia noted dryly in his dissent yesterday.
“VMI has previously seen another of its traditions abolished by this court,” he wrote. “This time, however, its cause has been ignored rather than rejected — though the consequences will be just the same.”
Justice Scalia voted in favor of VMI in the earlier case. Although he did not say how he would have voted this time, he appeared to tip his hand.
Prayer at a military college is more likely to be constitutional than prayer at a nonmilitary one, because “group prayer before military mess is more traditional than group prayer at ordinary state colleges,” he wrote.
The back-and-forth between Justices Scalia and Stevens offered a rare glimpse inside the secretive selection process for Supreme Court cases.
Debate over a prospective case might be vigorous or nonexistent, but to the outside world the result almost always appears the same: A simple, one-sentence notice that “the petition for a writ of certiorari is granted,” or, far more often, denied.
By dissenting in the VMI case, Justice Scalia and Chief Justice Rehnquist revealed that, at most, they were able to collect just one additional vote to hear the case. The justices in the court’s ideological middle, Sandra Day O’Connor and Anthony M. Kennedy, did not reveal their votes.
One reason to reject the case, Justice Stevens said, was the lack of a clear division among lower appeals courts that have considered similar issues about campus prayer. Such splits often lead the Supreme Court to get involved and make the law uniform nationwide.
Justice Scalia pounced on that reasoning, and he came close to calling his colleagues hypocrites. Of course, there are no cases precisely like the VMI case because there are no institutions precisely like VMI, he wrote.
Please read our comment policy before commenting.