Neil J. Mellen; Paul S. Knick v. JOSIAH BUNTING, III, in his individual capacity

FILED: August 13, 2003
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 NEIL J. MELLEN; PAUL S. KNICK,
Plaintiffs-Appellees,
v.
JOSIAH BUNTING, III, in his
individual capacity and in his
official capacity as Superintendent,
Virginia Military Institute,
Defendant-Appellant.
SPECIALTY RESEARCH ASSOCIATES,
INC.; FIRST PRINCIPLES, INC.; No. 02-1215 
COALITION OF AMERICAN VETERANS,
INC.; NAVAL AVIATION FOUNDATION,
INC.; THE NATIONAL LEGAL
FOUNDATION,
Amici Supporting Appellant.
AMERICANS UNITED FOR
SEPARATION OF CHURCH AND STATE;
ANTI-DEFAMATION LEAGUE; THE
AMERICAN JEWISH COMMITTEE,
Amici Supporting Appellees. 

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 NEIL J. MELLEN; PAUL S. KNICK,
Plaintiffs-Appellants,
v.
JOSIAH BUNTING, III, in his
individual capacity and in his
official capacity as Superintendent,
Virginia Military Institute,
Defendant-Appellee.
AMERICANS UNITED FOR
SEPARATION OF CHURCH AND STATE; No. 02-1267 
ANTI-DEFAMATION LEAGUE; THE
AMERICAN JEWISH COMMITTEE,
Amici Supporting Appellants.
SPECIALTY RESEARCH ASSOCIATES,
INC.; FIRST PRINCIPLES, INC.;
COALITION OF AMERICAN VETERANS,
INC.; NAVAL AVIATION FOUNDATION,
INC.; THE NATIONAL LEGAL
FOUNDATION,
Amici Supporting Appellee. 
ORDER
Before the Court is the appellant’s petition for rehearing and
rehearing en banc. On the petition for panel rehearing, no judge voted
in favor thereof, and panel rehearing is hereby denied.
A poll of the Court having been requested on the appellant’s peti-
tion for rehearing en banc, Judges Widener, Wilkinson, Niemeyer,
Luttig, Williams, and Shedd voted in favor thereof. Chief Judge Wil-
kins, along with Judges Michael, Motz, Traxler, King, and Gregory,
voted against rehearing en banc. A majority of the active judges hav-
ing failed to vote in favor of rehearing en banc, rehearing en banc is
also hereby denied.
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Judges Widener, Wilkinson, and Niemeyer wrote separate opin-
ions, which are filed herewith, dissenting from the denial of rehearing
en banc.
This Order is entered for the Court at the direction of Judge King.
For the Court
/s/ Patricia S. Connor
CLERK
WIDENER, Circuit Judge, dissenting:
I respectfully dissent from the refusal of this court to hear this case
by the en banc court.
While I may not agree in each detail with the dissenting opinions
of Judges Wilkinson and Niemeyer, I am in general agreement with
all of both of those opinions. Any disagreement I have with them is
in matters of inconsequential detail.
I.
I am struck with the reliance by the panel on what it obviously
believes is some kind of impure motivation on the part of VMI, and
while it may be phrased as a comparative, the necessary inflection
from the words leaves no doubt as to their meaning. "Nevertheless,
a State may disingenuously profess a secular purpose;" "a sham secu-
lar purpose from a sincere one;" "General Bunting has proffered sev-
eral purposes (purportedly secular) for the supper prayer;" "In
assessing General Bunting’s asserted purposes for the supper prayer."
With this support, the panel, then, although stating that it agreed
with the conclusion of the district court that part of VMI’s educational
mission in the eyes of General Bunting is "religious indoctrination"
and that the prayer in question is "plainly religious in nature,"
assumed the supper prayer to be motivated by secular goals, having
just previously quoted that "recitation of a prayer ‘is undeniably reli-
gious and has, by its nature, both a religious purpose and effect.’"
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I have difficulty in ascertaining the underlying meaning of the
panel opinion, but the effect of it is to "read into the Bill of Rights
. . . a philosophy of hostility to religion," Zorach Clausol, 343 U.S.
306, 315 (1952), a view warned against by Zorach.
II.
A more general, but no less emphatic, objection to our decision is
the frequent and implicitly approved use of prayer and like religious
symbolism by branches of the United States government in situations
and ceremonies similar to the VMI supper prayer, but more dangerous
because of the official imprimatur.
A few examples follow:
An Act of Congress of March 2, 1799, Ch. XXIV, 1 stat. 709, pro-
vided that the "[c]ommanders of ships of the United States, having on
board chaplains, are to take care, that divine service be performed
twice a day, and the sermon preached on Sundays." And in 1800, an
even stronger statute provided that ships’ commanders "cause all, or
as many of the ships company as can be spared from duty, to attend
at every performance of the worship of Almighty God." Act of April
23, 1800, ch. 33, 2 stat. 45. On the south wall frieze of the Supreme
Court building is a sculpture of Moses with Commandments 6-10. On
December 3, 1996, at a dinner in the Great Hall of the Supreme Court,
held to honor the new members of the United States Senate and
attended by the Vice President, seven associate justices of the
Supreme Court and 95 members of the Senate, the dinner prayer was
given by the Senate chaplain.1 At a session of this court, held Septem-
ber 28, 2001, for the investiture of a new member, not only was there
an invocation conducted by a minister of the Gospel, there was a
benediction by a minister.2 On November 8, 2002, in the United
States district court which has held invalid the VMI supper prayer, at
a naturalization ceremony in Abingdon, presided over by two district
1Center Correspondent, Winter, 1997, Center for Civic Education.
2Program appended.
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judges, there was an invocation by a minister of the Gospel and, as
well, a benediction by a minister.3
There has been no hint of complaint with respect to the Acts of
Congress encouraging religious services for sailors. Moses, with his
tablet, sits astride the Supreme Court’s building with the most fla-
grantly religious document of Judeo-Christian religion. The Supreme
Court has the Senate chaplain pray at its dinner. This very court,
swearing in a new member, has two ministers in the official cere-
mony. And the court which outlawed the VMI prayer, has both an
invocation and a benediction by a minister of the Gospel in its natu-
ralization ceremony.
The only way to logically reconcile the above events with each
other and with the decision of the panel is to approve a theory of do
as I say, not do as I do, or by a stamp of approval on what may be
called the two-Constitution theory, one for the federal government,
the other for the States, or simply to lay it off to a hostility to religion.
All of these I reject. In my opinion, the panel opinion is simply
wrong.
3Program appended.
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PROGRAM REFERENCED IN FOOTNOTE 2
PROGRAM
Chief Judge J. Harvie Wilkinson III
Presiding
Invocation
The Reverend Jeffrey L. Reaves, Sr.
Pastor, Good Shepherd Baptist Church
Petersburg, Virginia
Opening Remarks
Chief Judge J. Harvie Wilkinson III
Recognition of Special Guests
The Honorable Gerald Bruce Lee
District Judge for the Eastern District of Virginia
Presentation of the Commission
Bradford A. Berenson
Associate Counsel to the President
Administration of the Oath
Chief Judge J. Harvie Wilkinson III
Mrs. Carla L. Gregory
Robing
Adriene, Rachel, and Christina Gregory
Remarks
The Honorable George Allen
United States Senator
Remarks
The Honorable Charles S. Robb
Governor of Virginia, 1982-1986
The Honorable L. Douglas Wilder
Governor of Virginia, 1990-1994
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Remarks From the Bar
Michael A. Glasser, President, The Virginia State Bar
David C. Landin, Past President, The Virginia Bar Association
Marilynn C. Goss, President, The Old Dominion Bar Association
Linda M. Jackson, President, The Virginia Women Attorneys
Association
M. Janet Palmer, President, The Virginia Association of Black
Women Attorneys
Gail M. Waddell, President, The Tidewater Chapter of the Federal
Bar Association
Steven Goodwin, President, The Richmond Chapter of the Federal
Bar Association
Debra Prillaman, President, The Bar Association of the City of
Richmond
M. Ann Neil Cosby, The Metropolitan Richmond Women’s Bar
Association
Remarks
Judge Roger L. Gregory
Benediction
The Reverend Dr. Norman W. Smith
Pastor, Mount Olive Baptist Church
Rectortown, Virginia
7 MELLEN v. BUNTING

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PROGRAM REFERENCED IN FOOTNOTE 3
PLEDGE OF ALLEGIANCE
I PLEDGE ALLEGIANCE TO THE FLAG OF THE UNITED
STATES OF AMERICA AND TO THE REPUBLIC FOR WHICH
IT STANDS, ONE NATION, UNDER GOD, INDIVISIBLE, WITH
LIBERTY AND JUSTICE FOR ALL.
NATIONAL ANTHEM
O SAY, CAN YOU SEE, BY THE DAWN’S EARLY LIGHT
WHAT SO PROUDLY WE HAILED AT THE TWILIGHT’S
LAST GLEAMING,
WHOSE BROAD STRIPES AND BRIGHT STARS,
THROUGH THE PERILOUS FIGHT,
O’ER THE RAMPARTS WE WATCHED
WERE SO GALLANTLY STREAMING?
AND THE ROCKET’S RED GLARE, THE BOMBS BURSTING
IN AIR,
GAVE PROOF THROUGH THE NIGHT,
THAT OUR FLAG WAS STILL THERE
O SAY, DOES THAT STAR SPANGLED BANNER YET WAVE
O’ER THE LAND OF THE FREE, AND THE HOME OF
THE BRAVE.
................................................................................................................
APPLICANTS FOR UNITED STATES CITIZENSHIP
Rajeshkumar Ishvarshai Patel India
Trupti Hetal Patel India
Girija Nagaraja India
Talin Jabourian Lebanon
Faisal Tufail Waqar Chaudhry Pakistan
Hetal Chandrakant Patel India
Augusto Antonio Portuondo Cuba
Mae Cha Coleman South Korea
Hansaben Harshadrai Shah India
Hong Van Thi Taylor Vietnam
Thimmoji Rao Nagaraja India
8 MELLEN v. BUNTING

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Kinda Sawaf Syria
June Ruby Louise Trent United Kingdom
Diane Joy Cross Canada
Pannaben Ashokchandra Shah India
Ashokchandra Ramchand Shah India
Himansu Ashokchandra Shah India
Sami Ferliel Turkey
Muna Faisal Chaudhry Pakistan
Lehlohonolo Tlou Zimbabwe
................................................................................................................
NATURALIZATION CEREMONY
HONORABLE JAMES P. JONES
HONORABLE GLEN M. WILLIAMS
PRESIDING
OPENING OF COURT Ron Donelson,
Acting Chief Deputy U.S. Marshal
PRESENTATION OF COLORS Honor Guard
Bristol Virginia Police Dept.
INVOCATION Rev. Stan Green
Grace Christian Fellowship
Abingdon, Virginia
PRESENTATION OF PETITIONERS Rick Mountcastle
Assistant United States Attorney
Western District of Virginia
ADMINISTRATION OF OATH OF
CITIZENSHIP Honorable James P. Jones
PRESENTATION OF CERTIFICATES Honorable James P. Jones
PRESENTATION OF FLAGS Joyce Jones, Deputy Clerk
U. S. District Court
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REMARKS TO NEW CITIZENS Honorable James P. Jones
Honorable Glen M. Williams
PLEDGE OF ALLEGIANCE Kathy Bradley, Deputy Clerk
U. S. District Court
NATIONAL ANTHEM Elizabeth P. Stokes, Deputy Clerk
U. S. District Court
BENEDICTION Rev. Stan Green
RETIRING OF COLORS Honor Guard
Bristol Virginia Police Dept.
ADJOURNMENT Ron Donelson
Acting Chief Deputy U.S. Marshal
10 MELLEN v. BUNTING

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WILKINSON, Circuit Judge, dissenting from the denial of rehearing
en banc:
I respect and appreciate the commitment of my colleagues to
enforcing the values of the Establishment Clause. It is a commitment
that I share. Not every public religious observance is a First Amend-
ment violation, however. Sch. Dist. of Abington Township v.
Schempp, 374 U.S. 203, 294 (1963) (Brennan, J., concurring). With
all respect to the panel, its ruling goes too far. The supper prayer at
Virginia Military Institute is the most benign form of religious obser-
vance. It is brief and non-sectarian, and it takes place in a higher edu-
cation setting in which the dangers of coercion are minimal. The
observance has existed for years, and it represents a general practice
with a longstanding history in our country. To nullify it at this late
date will have significant consequences throughout this circuit,
including at other military academies and settings where we should
be slow to discount the sustaining role of faith.
I.
As in all Establishment Clause challenges, the factual circum-
stances here are critical. See Lynch v. Donnelly, 465 U.S. 668, 694
(1984) ("Every government practice must be judged in its unique cir-
cumstances . . . .") (O’Connor, J., concurring). Three factors are sig-
nificant in assessing VMI’s observance, and I address each of these
in turn.
A.
First, this is an exercise among adults. VMI does not compel any-
one to participate directly in the prayer, and the college status of the
cadets undermines any argument that they are indirectly coerced to
take part in it. If this same observance took place in a primary or sec-
ondary school setting, I would regard it in a much different light. But
I doubt that cadets who are deemed ready to vote, to fight for our
country, and to die for our freedoms, are so impressionable that they
will be coerced by a brief, non-sectarian supper prayer.
The panel, however, did not believe that the factor of maturity mat-
tered much at all here. This ignores how essential an ingredient the
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age and maturity of audiences have been in the Supreme Court’s deci-
sions. The early school prayer cases dealt only with religious exer-
cises in primary and secondary school classrooms. See Engel v.
Vitale, 370 U.S. 421, 424 (1962); Sch. Dist. of Abington Township v.
Schempp, 374 U.S. 203, 205-08 (1963); Wallace v. Jaffree, 472 U.S.
38, 40, 60 (1985). Lee v. Weisman, 505 U.S. 577 (1992) (striking
down prayers at middle school and high school graduation ceremo-
nies), and Santa Fe Independent School District v. Doe, 530 U.S. 290
(2000) (striking down prayers at high school football games), also
dealt with the susceptibility of younger and more impressionable stu-
dents to religious indoctrination; indeed, both decisions are explicit on
this point. The Court in Lee made clear that its decision hinged on the
"subtle coercive pressures" that exist in a case involving "school-age
children" in the secondary schools, particularly at a high school grad-
uation. See Lee, 505 U.S. at 583, 586, 588, 590, 592-99. In Santa Fe,
the Court emphasized, as it had in Lee, the unique impressionability
of school-age children. See Santa Fe, 530 U.S. at 301-02, 305, 307-
08, 311-12. "The potential for undue influence is far less significant
with regard to college students who voluntarily enroll in courses.
‘This distinction warrants a difference in constitutional results.’"
Edwards v. Aguillard, 482 U.S. 578, 584 n.5 (1987) (quoting
Schempp, 374 U.S. at 253 (Brennan, J., concurring)).
It is not difficult to understand why the factor of maturity has come
to play such an important role in the Supreme Court’s school prayer
decisions. It is not only that primary and secondary school students
are particularly susceptible to religious indoctrination. There is also
the greater danger that school authorities may seek to take advantage
of this susceptibility to promote their own sectarian beliefs. And the
susceptibility of primary and secondary school students may further
heighten parental apprehensions that religious practices and principles
are being promoted at school that are at odds with those instilled at
home. These dangers are vastly diminished in a higher education set-
ting, if indeed they exist at all. It is therefore not surprising that our
sister circuits have reached a contrary conclusion from the panel,
declining to extend the Court’s school prayer decisions to the college
environment. See Chaudhuri v. Tennessee, 130 F.3d 232 (6th Cir.
1997); Tanford v. Brand, 104 F.3d 982 (7th Cir. 1997).
Of course, my colleagues cannot fail to acknowledge the more
mature character of the cadet corps. Mellen v. Bunting, 327 F.3d 355,
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371 (4th Cir. 2003). But still they find the supper prayer to be coer-
cive, based on the adversative nature of VMI’s training program. Id.
at 371-72. This is a shame. The opportunities presented at VMI are
altogether open; no one is forced or coerced to attend the school, and
neither are they now prohibited from doing so. See United States v.
Virginia, 518 U.S. 515 (1996). No local school board draws the atten-
dance zone for VMI. The students who attend the college do so by
choice. And the thing that leads both men and women to attend VMI
voluntarily is that the school is in some respects unique. It is "an
incomparable military college" that draws students precisely because
of the educational and developmental experience that its training pro-
vides. Id. at 519. With its doors now thankfully open to all, VMI has
the chance to combine the best of equal opportunity with the best of
tradition. And it is wrong for courts to seize the moment to divest this
institution of its educational distinctiveness.
In any event, VMI’s observance is not coercive in any real sense.
The panel found that it is, but in doing so the panel speculated as to
the social pressures that VMI’s educational system might impose
upon cadets. Mellen, 327 F.3d at 371-72. This type of speculation is
unwarranted here, because appellees conceded that they faced no
adverse consequences for any failure to take part in the prayer, and
they did not even claim that they felt pressure to attend or participate
in the observance, apart from the basic requirement to stand. See Tape
of Oral Argument, Jan. 21, 2003 (Appellee’s Response Argument);
J.A. 36-37A (Deposition of Appellee Paul S. Knick), 252 ¶ 13 (Decla-
ration of Appellee Neil J. Mellen).
Moreover, the record shows that the panel’s speculation was inac-
curate, as both attendance and participation in the observance are vol-
untary. First, it is difficult to see how cadets like those challenging
VMI’s prayer — upper-class cadets — are unduly coerced to attend
the mess hall observance. Following the supper roll call, these cadets
may fall out of marching formation prior to reaching the mess hall
and eat dinner with the faculty or select one of several other dining
options. Upper-class cadets can thus avoid attending the suppertime
prayer without adverse consequences. I readily understand the pres-
sures that school-age students might face to attend high school gradu-
ations and Friday night home football games. See Lee, 505 U.S. at
594-95; Santa Fe, 530 U.S. at 311-12. But adult cadets are simply not
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as prone as younger children might be to the social pressures to attend
a mess hall observance.
And even if one were to conclude that attendance at the suppertime
observance is required — either directly (for first-year cadets) or indi-
rectly (for others that are coerced to attend) — it is implausible to
suggest that cadets are coerced to participate in the prayer. As the
panel states, "cadets are not obliged to recite the prayer, close their
eyes, or bow their heads." Mellen, 327 F.3d at 362. During the prayer,
cadets are directed to stand at a "rest" command, which allows them
the freedom to move, drink, or even talk, so long as they keep their
right feet in place. See J.A. 37 (Deposition of Appellee Paul S.
Knick). Thus, a cadet must stand, but he or she can engage in a vari-
ety of other conduct.
None of these restrictions could possibly coerce a dissenting cadet
into believing that he or she was participating in the prayer or was
signaling any approval of it to others. No cadet could reasonably
believe that the act of standing, in this context, signaled assent to the
prayer — all cadets must stand for altogether secular reasons, as
ordered by school officials for such things as daily announcements.
Moreover, no cadet is required to remain silent, pursuant to the "rest"
command. And, of course, merely being present in a room where
prayer occurs, or hearing a prayer that might offend one’s sensibili-
ties, has not been enough to constitute an Establishment Clause viola-
tion. See Lee, 505 U.S. at 597-98 ("People may take offense at all
manner of religious as well as nonreligious messages, but offense
alone does not in every case show a violation.").
It is thus apparent that neither the early school prayer cases, nor
Lee, nor Santa Fe supports the panel’s result. The Court in Lee
stressed that other "questions of accommodation of religion" that
involved "mature adults" were left for future cases. Id. at 593, 598-99.
We face precisely that question here, for the first time. And we have
before us an institution that has made a brief, non-sectarian prayer
also non-coercive.
B.
Second, it is critical to my view that VMI uses a non-sectarian
prayer with no intent to proselytize. There is no suggestion that VMI
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has tried to make it otherwise. The prayers, which vary depending on
the day, are focused generally on giving thanks for the upcoming
meal, and on asking God’s blessing for the Corps or for the family
and friends of the cadets. How this violates the Establishment Clause
confounds me. Religious expression can be divisive, but it need not
be so. The disparate strands of belief can come together in a broader
unity much as streams unite into a river. Such exercises allow us to
celebrate common bonds and to join with our fellow citizens in sol-
emnizing rituals, without producing the sort of divisiveness that the
Establishment Clause rightly seeks to avoid.
The non-denominational, non-indoctrinating character of the prayer
is what allows VMI to achieve its secular purposes.1 As VMI argues,
its suppertime observance serves several such purposes, none of
which appear to be in dispute. See Appellant’s Br. 47-52. First, the
prayer has a clear academic purpose: it furthers VMI’s stated mission
to develop cadets into civilian and military leaders. Id. at 47. Specifi-
cally, it familiarizes cadets with religious practices, it encourages reli-
gious tolerance, and it aids students in reflecting upon their own
beliefs. Id. at 11-13. The prayer also serves an important expressive
function: it allows cadets to celebrate the American tradition of "ex-
pressing thanksgiving and requesting divine guidance and support"
for the challenges that lie ahead. Id. at 48. Just as religious invoca-
tions solemnize events like legislative sessions, the VMI prayer sol-
emnizes the supper roll call ceremony, an occasion in which the
cadets come together to share an important part of their day. Id. at 49.
Finally, the VMI prayer performs an accommodationist function: it
facilitates the cadets’ exercise of their spiritual needs and free exer-
cise rights. Id. at 50. Given the rigors of life in military school and
the limited time that cadets have for themselves, this brief period for
1Of course, the fact that a prayer is non-sectarian does not make it con-
stitutionally permissible in the elementary and secondary schools. See,
e.g., Engel v. Vitale, 370 U.S. at 430; Lee, 505 U.S. at 588-89. In that
context, the Court has found any kind of prayer to be unconstitutional
because of the impressionability of children. But this says nothing about
whether the non-sectarian character of an observance is an appropriate
factor for us to consider here, where we deal with a prayer spoken to
adults. In this context, the non-sectarian nature of the prayer is important
in my view.
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personal reflection and, if they so choose, spiritual meditation, is sig-
nificant. Id. at 50-51.
These purposes are not the property of any sect. And they do not
contain the slightest hint of proselytization to cadets. They are com-
mon to all faiths or even to no faith. In fact, these purposes are similar
to the aims that the Supreme Court has regularly considered permissi-
ble under the Establishment Clause as valuable accommodations of
religion. For example, the Court expressly approved the practice of
opening legislative sessions with a prayer. Marsh v. Chambers, 463
U.S. 783, 786 (1983). It has acknowledged the importance of other
government accommodations of religion, such as declaring public
holidays and imprinting "In God We Trust" on coins. See Lynch v.
Donnelly, 465 U.S. 668, 674 78 (1984). As Justice O’Connor
explained, "[t]hose government acknowledgments of religion serve, in
the only ways reasonably possible in our culture, the legitimate secu-
lar purposes of solemnizing public occasions, expressing confidence
in the future, and encouraging the recognition of what is worthy of
appreciation in society." Id. at 693 (O’Connor, J., concurring).
C.
Finally, it is significant that this case involves a military setting.
VMI is a state-run military college that was created in 1839 for the
primary purpose of training future soldiers. Its "distinctive mission,"
as the Supreme Court has recognized, "is to produce ‘citizen-
soldiers,’ men [and women] prepared for leadership in civilian life
and in military service." United States v. Virginia, 518 U.S. 515, 520
(1996). Accordingly, all VMI cadets participate in ROTC programs
and train for service in the armed forces. Approximately 40% of the
graduates of VMI become commissioned officers. Mellen, 327 F.3d
at 361 n.1. VMI, though offering a liberal arts education to its cadets,
has since its founding used the "adversative method," a rigorous train-
ing program that subjects cadets to strenuous physical and mental dis-
cipline. Experienced school officials with considerable military
backgrounds administer the training program, and it is these officials
who are charged with the duty of creating the curriculum and select-
ing the exercises that will best achieve VMI’s mission.
To encourage unity and teach discipline, these officials created the
supper roll call ceremony, an exercise in which all cadets first gather
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into formation outside their barracks at the call of a bugle horn. After
cadets are accounted for and the colors are struck, the cadets march
in formation to the mess hall. Once there, the cadets who remain in
formation are called to attention and presented to the head faculty
member. The cadets are commanded to remain at "rest," and then a
VMI official makes daily announcements and the chaplain reads the
brief supper prayer. In the considered judgment of the school offi-
cials, the supper roll call ceremony — including the religious obser-
vance — furthers VMI’s core mission by training cadets to become
more complete soldiers and civilians, by facilitating the expression of
thanks, by providing the occasion for personal meditation and reflec-
tion, and, finally, by accommodating the spiritual needs of the corps.
The panel adduces not the slightest evidence that officials at VMI
have introduced religious division in the ranks. But the panel’s prob-
lem runs deeper on this score. Its basic misunderstanding comes in the
suggestion that all is well because cadets remain free to worship on
their own. Mellen, 327 F.3d at 372, 375. This, to be sure, is valuable
and true, but it fails to appreciate the full dimensions of military train-
ing. One does not fight a war alone. Rather, unit cohesion and bond-
ing are necessary ingredients of success. The process of transforming
cadets into soldiers entails a variety of exercises that are aimed at cre-
ating just such bonds, and to ban communal exercises is to ban a form
of fellowship that may sustain soldiers in their darkest and most dan-
gerous hours. Both the act of prayer and the fact of death may have
more meaning if they occur in the company of family or of friends.
Sadly, the majority’s rule of private reflection only denies the com-
munal value of votive expression when the need is thought, by those
entrusted with the training of soldiers, to be the most profound.
D.
The above factors, in combination, make VMI’s supper prayer a
constitutionally permissible one. VMI’s prayer satisfies the require-
ments of the Lemon test. See Lemon v. Kurtzman, 403 U.S. 602, 612-
13 (1971). The panel accepted VMI’s stated secular purposes under
the first prong of Lemon. Mellen, 327 F.3d at 374. Second, the pri-
mary effects of VMI’s prayer are permissible ones: within this con-
text, the prayer principally solemnizes the occasion, encourages
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reflection, and promotes VMI’s core training mission.2 Finally, there
is no "excessive" entanglement between government and religion
here, since there is no public monitoring of the uses of financial aid
by religious entities and there is no need for VMI to interact with any
religious organizations. See Koenick v. Felton, 190 F.3d 259, 268 (4th
Cir. 1999).
But beyond the steps of doctrine, the suppertime prayer here repre-
sents not some radical religious innovation but the kind of traditional
accommodation of religion that society has long made part of our cul-
ture. VMI’s observance has been practiced for years. Although the
current prayer has only been in place since 1995 — it was temporarily
discontinued in 1990 due to a change in the dining style of the mess
hall — in the past VMI has traditionally sponsored a similar meal-
time prayer. Mellen, 327 F.3d at 362 n.5. And prayer has long been
a part of military life in general. See, e.g., J.A. 203-05 (Expert Report
of Col. John W. Brinsfield, Ph.D). But even outside the military con-
text, it is traditional for groups — from legislative bodies to local city
councils to private inter-denominational groups like Rotary Clubs —
to begin their meals or public meetings with a brief, non-sectarian
prayer. In many ways, then, VMI’s observance is part of a larger and
broader social practice.
There is a danger that in overturning long and widely accepted
accommodations, courts will divide a community, rather than unite it.
A primary aim of the Establishment Clause is to prevent divisiveness
over matters of religion. See Lee, 505 U.S. at 587-88; Hall v. Brad-
shaw, 630 F.2d 1018, 1021 (4th Cir. 1980). I would never contend
that the mere longevity of a prayer or practice should somehow insu-
late it from judicial scrutiny. But the consequences of precipitate
decree resonate throughout society and discourage institutional
growth and change from within society itself. When courts push too
insistently at shared understandings and accommodations — reached
over time and given meaning through the customs and rituals of
2The observance undoubtedly has a religious effect as well. However,
the Lemon test makes a practice unconstitutional only if its "principal or
primary effect" is a religious one. Lemon, 403 U.S. at 612. Here, within
the context of the supper roll call ceremony, the secular effects of the
prayer are in my view the "principal" ones.
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observance — they risk inflaming the sorts of religious passion that
the Establishment Clause was intended to prevent.
II.
The ramifications of this decision extend beyond VMI. Despite the
panel’s best efforts to characterize its opinion as being limited to the
facts of this case, I regret to say that I see nothing narrow in its ruling.
It immediately impacts The Citadel, another state-operated military
school in our circuit. Mealtime observances at the service academies
— including the United States Naval Academy within our own circuit
— are bound to be affected. It is true, as the panel notes, see Mellen,
327 F.3d at 375 n.13, that the Virginia General Assembly funds VMI,
whereas the federal government funds the United States military and
the service academies. But I fail to see how one could make a princi-
pled distinction out of this point, as the Establishment Clause unques-
tionably applies similarly to state and federal government actors. See
Everson v. Bd. of Education, 330 U.S. 1, 15-16 (1947).
Appellees also claim that, notwithstanding its undisputed mission
of training cadets, VMI is merely a liberal arts college that sends only
40% of its students into the armed forces as commissioned officers.
The service academies, by contrast, require a commitment to military
service from all of their cadets, and thus they are more closely tied
to the military and their decisions will be subject to the deference that
courts have traditionally accorded to military practice. See Appel-
lant’s Answer to Pet. for Reh’g at 9-10; Tape of Oral Argument, Jan.
21, 2003 (Appellee’s Response Argument).
But this distinction also fails to provide a meaningful basis for pre-
serving the mealtime prayer at Annapolis, given the panel’s decision
here on VMI. Simply put, all of these schools are government-
operated military institutions. VMI has as its primary mission the
same goal as do the academies: to train cadets to become military
leaders. While VMI’s student body is not exclusively made up of
future soldiers, its mission and its educational structure are aimed
towards that goal. The fact that only 40% of its students become sol-
diers, while 100% of the cadets at the academies become soldiers, is
hardly a basis for any meaningful distinction under the Establishment
Clause. Otherwise, we will have deprived VMI of its ability to appro-
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priately train the 40% of its students for the military, simply because
it decided to share its training method with other students that will-
ingly seek its benefits.
Indeed, the panel accepted VMI’s stated justifications for the reli-
gious observance — the need to train military and civilian leaders and
prepare them for military life — and still struck down VMI’s prayer.
The service academies would defend their own mealtime observances
with the same justifications. By deeming VMI’s adversative training
as coercive, the panel has made the discipline inherent in all military
environments a sufficient basis for invalidating any non-sectarian
prayer. It has thrown all such observances into extended litigation and
considerable doubt.
III.
In closing, I stress the limited nature of my own view. In express-
ing the conviction that this exercise is constitutional, I do not suggest
that public sponsorship of even non-sectarian prayer is free of serious
difficulty. There is, however, a balance to be struck between enforc-
ing the vital dictates of the Establishment Clause and the need not to
visit hostility upon religious observance in all its forms. In deciding
these questions, we do not operate in a vacuum; we must work within
the context of history, tradition, and the stable accommodations
reached within society. Viewed in this light, the exercise at VMI does
not offend the Constitution. By holding otherwise, the panel has
deprived this community of some small but important measure of its
richness and meaning.
NIEMEYER, Circuit Judge, dissenting from the denial of rehearing
en banc:
This court, by a vote of 6-6, has declined to rehear en banc this
important case in which the panel ruled that a short nondenomina-
tional prayer said at the Virginia Military Institute before dinner vio-
lated the Establishment Clause of the Constitution. Because the panel
extends Supreme Court jurisprudence — which has never found
unconstitutional prayer in public colleges and universities — and
creates a conflict with the Sixth and Seventh Circuits, which have
rejected Establishment Clause challenges to prayers in public univer-
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sities, this case is especially well suited for en banc review. Because
I believe we miss this uncommon opportunity to air the court’s views
on this important and relevant subject and to provide the Supreme
Court with a reasoned discussion of all sides on this issue, I dissent
from our refusal to rehear this case en banc.
I
The Virginia Military Institute (VMI), a State military college in
Lexington, Virginia, founded in 1839, offers a liberal education in the
context of a highly disciplined military routine with the purpose of
preparing cadets for military leadership. Short nondenominational
prayers before supper are part of VMI’s routine. At 6:30 p.m., a bugle
call summons the Corps into formation. After an accountability
report, the colors are struck and the Corps marches to the mess hall,
where the regimental commander gives the command "Attention!"
and presents the Corps to the officer-in-charge. After salutes are
exchanged, the regimental commander gives the command "Rest!"
Announcements are made and a brief prayer is read by a cadet, after
which the Corps is seated and begins its evening meal.
The prayers that are used were composed by the VMI Chaplain on
the U.S. Army model and are nondenominational, avoiding any refer-
ence to a specific faith. The prayer for Monday, for example, reads:
Almighty God, we give our thanks for VMI, for its reputa-
tion, spirit and ideals. Let your favor continue toward our
school and Your grace be abundantly supplied to the Corps.
Now O God, we receive this food and share this meal
together with thanksgiving. Amen.
Similarly, the Tuesday prayer reads:
Oh God, we ask Your blessing on the Corps. Strengthen our
commitment to excellence, establish our hearts in honor,
confirm upon us honorable conduct and perfect us in the
performance of our duty. Now O God, we receive this food
and share this meal together with thanksgiving. Amen.
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Similar prayers are read for Wednesday through Sunday, with the
exception of Saturday, thanking God for families and friends, for
health, strength, and sound mind, for success, and for the weekend.
No cadet is required to recite the prayer or to show any participation
in it. Each merely has to remain standing at rest until the prayer is
completed.
The plaintiffs, two cadets who applied for admission to VMI and
were admitted to its 2002 class, objected to the prayers, and when
VMI refused to discontinue the prayers, commenced this action. They
alleged in their complaint that they "object[ed] to being required to
listen to an official religious prayer as a condition for eating dinner"
and that they "object[ed] to being required to stand during the prayer,
since standing expresses agreement with or assent to the message of
the prayer." In response to the plaintiffs’ objections, VMI officials
told the plaintiffs that they "did not have to recite the prayer or bow
their heads," but they had to "remain standing and not do anything
distracting."
On cross-motions for summary judgment, the district court found
the prayers unconstitutional, in violation of the Establishment Clause.
See Mellen v. Bunting, 181 F. Supp.2d 619 (W.D. Va. 2002). The
panel opinion affirms the judgment of the district court. 327 F.3d 355
(4th Cir. 2003).
II
When analyzing whether the Establishment Clause has been vio-
lated, the general inquiry is still that governed by Lemon v. Kurtzman,
403 U.S. 602 (1971) (holding that State funding of religious schools
violated the Establishment Clause). But the principles governing
prayers in schools are established more particularly in Lee v. Weis-
man, 505 U.S. 577 (1992), where the Supreme Court identified the
applicable principles and refused either to apply or reconsider its deci-
sion in Lemon. The Court explained, "We can decide the case without
reconsidering the general constitutional framework by which public
schools’ efforts to accommodate religion are measured. Thus we do
not accept the invitation of the petitioners and amicus the United
States to reconsider our decision in Lemon v. Kurtzman." Id. at 587.
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In Lee, the Court held that the Establishment Clause prohibited the
offering of a prayer by a clergy member at a public school graduation
ceremony. The Court observed that "there are heightened concerns
with protecting freedom of conscience from subtle coercive pressure
in the elementary and secondary public schools." 505 U.S. at 592; see
also id. at 593-94 (noting that "[r]esearch in psychology supports the
common assumption that adolescents are often susceptible to pressure
from their peers towards conformity, and that the influence is strong-
est in matters of social convention"). Finding that "the conformity
required of the student in this case was too high an exaction to with-
stand the test of the Establishment Clause," the Court struck down the
challenged practice. Id. at 598.
The Supreme Court’s decision in Lee was consistent with its earlier
holdings in Engel v. Vitale, 370 U.S. 421 (1962) (striking down a
nondenominational prayer said daily in elementary and secondary
schools in New York), and School District of Abington Township v.
Schempp, 374 U.S. 203 (1963) (striking down the daily recitation of
the Lord’s Prayer and reading from the Bible in elementary and sec-
ondary schools). And Lee was followed and applied in Santa Fe Inde-
pendent School District v. Doe, 530 U.S. 290 (2000) (striking down
a policy in public high school that authorized the school student body
to vote on whether an invocation would be delivered at its football
games).
As the panel opinion in this case recognizes about these cases, "co-
ercion has emerged as a prevailing consideration in the school prayer
context." 327 F.3d at 370. But in this jurisprudence, the panel opinion
does not stop at the borders of the Supreme Court’s holdings. Each
of the school prayer cases — Engel, Schempp, Lee, and Santa Fe —
involved prayers in elementary and secondary schools, and no
Supreme Court case has struck down a prayer spoken in a college or
university context. As the Supreme Court in Lee explained, "there are
heightened concerns with protecting freedom of conscience from sub-
tle coercive pressure in the elementary and secondary public schools
. . . [and] prayer exercises in public schools carry a particular risk of
indirect coercion." 505 U.S. at 592. This coercion becomes especially
suspect because of the vulnerability of the young sent to public school
under compulsion of State law. The Lee Court pointed out that its ear-
lier holding in Marsh v. Chambers, 463 U.S. 783 (1983), which
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upheld prayer in the Nebraska State legislature, was distinguishable
on this basis. 505 U.S. at 596-97. As the Court in Marsh observed,
"the individual claiming injury by the [prayer] practice is an adult,
presumably not readily susceptible to ‘religious indoctrination,’ or
peer pressure." 463 U.S. at 792 (internal citations omitted).
The panel opinion also gives no weight to the fact that, unlike pub-
lic school children who are required by law to attend public school,
cadets in the Corps at VMI are there voluntarily, having seen the pro-
gram, sought admission to it, and selected it as their choice for a col-
lege education and military training.
Not only is the panel decision thus not compelled by Supreme
Court precedent, it also creates a deep conflict with two other circuits.
See Chaudhuri v. Tennessee, 130 F.3d 232 (6th Cir. 1997); Tanford
v. Brand, 104 F.3d 982 (7th Cir. 1997). In Tanford, the Seventh Cir-
cuit held that the Establishment Clause did not forbid the giving of
a nondenominational invocation and benediction during the gradua-
tion ceremony at Indiana University. Distinguishing the facts before
it from the "special concerns underlying the Supreme Court’s decision
in Lee," the court noted that "the mature stadium attendees [at the
University commencement] were voluntarily present and free to
ignore the cleric’s remarks." 104 F.3d at 985-86. And in Chaudhuri,
the Sixth Circuit followed the same course, holding that the Establish-
ment Clause did not prohibit nonsectarian prayers or moments of
silence at public functions at Tennessee State University. The court
stated that "[t]he peer pressure and ‘subtle coercive pressure’ that
concerned the Court in Lee were simply not present here" and noted
that no adult listener at the university functions "was ‘coerced’ into
participating in the prayers merely because he was present." 130 F.3d
at 239. Noting the importance of a case-by-case examination under
the Establishment Clause, the court emphasized that "the age of the
audience [has always been] an important factor in the analysis." Id.
And even in considering the challenged prayers and moments of
silence under the Lemon test, both Tanford and Chaudhuri maintained
that the practices were constitutional. Tanford, 104 F.3d at 986;
Chaudhuri, 130 F.3d at 236-38.
The panel opinion discounts these two decisions from the Sixth and
Seventh Circuits, finding that VMI cadets are "uniquely susceptible
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to coercion." 327 F.3d at 371. It reasons that VMI’s disciplinarian
environment characterized by obedience, conformity, and regulation
supplies greater coercive pressure than the nonmilitary environments
present in the other two courts of appeals cases. Id. at 371-72. This
approach, I respectfully submit, attributes a somewhat patronizing
level of helplessness and vulnerability to a self-selecting group of
men and women who voluntarily expose themselves to a rigorous
training environment, the purpose of which is to develop strong lead-
ers. Moreover, it is ironic that the panel implies that VMI cadets, who
endure humiliation and tests of physical endurance, are more sensitive
to psychological manipulation than their peers at other post-secondary
institutions. I submit that, to the contrary, they are adults with demon-
strably strong willpower, and just as we differentiate between children
and adults in the free speech context, we can differentiate between
children and VMI cadets in the religious liberty context. See Lee, 505
U.S. at 593 ("We do not address whether that choice [between partici-
pating or protesting] is acceptable if the affected citizens are mature
adults, but we think the State may not . . . place primary and second-
ary school children in this position"); Chaudhuri, 130 F.3d at 238
("Lee attached particular importance to the youth of the audience and
the risk of peer pressure and ‘indirect coercion’ in the primary and
secondary school context").
An adult possessing the disciplined willpower demonstrated by the
cadets at VMI, standing in silence while a short prayer is read, is not
forced to engage in any act of worship contrary to his or her beliefs.
Cf. Marsh, 463 U.S. at 791 ("We conclude that legislative prayer
presents no more potential for establishment than the provision of
school transportation"). Listening to a prayer in that passive posture
is no more intrusive than being exposed to the broad array of daily
messages involuntarily heard or read to every citizen as the result of
legitimate exercises of free speech.
It is clear that the holding of the panel opinion in this case is not
required by precedent. Rather, it is a new extension of the Establish-
ment Clause, moving in the alarming direction of purging all public
places of religion.
III
What the panel opinion fails to acknowledge is that its holding now
moves our jurisprudence in a direction that is diametrically opposed
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to the purpose of the Establishment Clause, which was to promote the
freedom of religion by assuring the disestablishment of particular reli-
gions that had been selected and favored by State statutes and by cus-
tom and by promoting the equality of other religions.
Throughout the colonial and founding periods, established
churches, which were created by legislation, common law, and prac-
tice, dominated the colonies and the States. See Michael McConnell,
Establishment and Disestablishment at the Founding, Part I: Estab-
lishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2110-30 (2003);
see also id. at 2107 (noting that 9 of the 13 colonies had established
churches, as did Great Britain and several other countries at the time
of the American Revolution). Although many of the colonies rejected
the Church of England, they nevertheless did not go so far as to
entirely disassociate church from state, instead privileging other
churches as establishments. Id. at 2115-30. Indeed, "most members of
the founding generation believed deeply that some type of religious
conviction was necessary for public virtue, and hence for republican
government." Id. at 2109.
Current research shows that adoption of the First Amendment did
not divide church and state or require anti-religious government. See
Philip Hamburger, Separation of Church and State 481 (2002) (con-
cluding that "the constitutional authority for separation is without his-
torical foundation"). Rather, accurately understood, the Establishment
Clause was intended to prohibit the granting of unequal privileges
among religions. See id. at 101-02; McConnell, supra, at 2207 (stat-
ing that the "the issue of government control over religion . . . is argu-
ably the most salient aspect of the historical establishment").
The religious dissenters who participated in the campaign
against establishments and whose claims seem to have
affected the wording of the constitutional guarantees against
establishments made demands for a religious liberty that
limited civil government, especially civil legislation, rather
than for a religious liberty conceived as a separation of
church and state. Moreover, in attempting to prohibit the
civil legislation that would establish religion, they sought to
preserve the power of government to legislate on religion in
other ways. Accordingly, American constitutions, whether
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those of the states or that of the United States, said nothing
about separation. Nor should any of this be a surprise. All
of the dissenting denominations that struggled against estab-
lishments had clergy, structures of authority, and other con-
ventional characteristics of institutional churches.
Hamburger, supra, at 107. And for Americans at the time of the adop-
tion of the Bill of Rights, the distinction between separation of church
and state and freedom from religious establishment was "of profound
importance." Id. at 479-80; id. at 480 ("Although the dissenters
rejected what they sometimes called a ‘union of church and state,’
they also avoided the other extreme"); id. at 486 (noting that the
eighteenth-century advocates of constitutional limits on government
establishment of religion, whose struggles led to the adoption of the
First Amendment, "no more wanted a separation of church and state
than they wanted an establishment").
Separation of church and state — the interpretation and application
of the Establishment Clause espoused by the panel opinion — only
took on constitutional authority "under the cover of an historical myth
that conveniently allowed Americans to avoid perceiving the chang-
ing character of their constitutional law," id. at 483, when twentieth-
century anti-Catholic nativists, buoyed by popular distrust of ecclesi-
astical authority, seized upon the Establishment Clause as a vehicle
for their sentiments, id. at 481.
Contrary to what may be expected, the nineteenth-century
advocates who desired the separation of church and state as
a constitutional right did not rely upon constitutional inter-
pretation to secure this goal. Instead, recognizing separa-
tion’s inadequate constitutional foundations, they sought
constitutional amendments. Only in the twentieth century,
after the amendment process had been abandoned, did an
interpretive approach prevail, and, by this means, separation
became part of American constitutional law.
Id. at 285. But as the Founders recognized, "there are myriad connec-
tions between religion and government that do not amount to an
establishment, let alone a full union of church and state," id. at 486,
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and "separation ought not be assumed to have any special legitimacy
as an early American and thus constitutional idea," id. at 483.
In short, the Establishment Clause was a protection for non-
established religions, designed to eliminate State differentiation
among religions, thereby advancing an equal freedom of religious
practice. The dissenters of the period, members of non-established
denominations, objected to establishment because of the financial
benefits and public control States conferred upon established churches
and correspondingly denied non-established churches. Hamburger,
supra, at 480. Because the alternative concept of multiple establish-
ments was rejected, McConnell, supra, at 2120, the debate over estab-
lishment became a competition among religious denominations, the
result of which was the Establishment Clause. "[T]he history of the
founding period shows that free exercise and disestablishment were
supported politically by the same people, with the strongest support
for disestablishment coming from the most evangelical denominations
of America." Id. at 2207.
Thus, the separation of church and state that underpins the panel
opinion has no support from the Establishment Clause. And the
Establishment Clause was never understood to prohibit nondenomina-
tional prayers in public assemblies.
IV
The importance of the panel opinion and its unprecedented reach
cannot be overstated. It is a major abandonment of values embraced
by the Founders and by our society during the eighteenth and nine-
teenth centuries. The Establishment Clause and the Free Exercise
Clause were aimed in the same direction of recognizing and promot-
ing the freedom of religious practice, both for its inherent value to
participants and as a contributor to the overall abilities of a democ-
racy to function. See Hamburger, supra, at 485 (citing observations
by Alexis de Tocqueville to that effect); McConnell, supra, at 2206-
07 (same).
Failing to recognize this, the panel opinion regrettably treats reli-
gion as a virus that somehow will infect the public square if acknowl-
edged in even the most unintrusive of circumstances. This idea is new
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and certainly foreign to the Establishment Clause. I observe that the
panel holding now places religious prayer in a more restrictive cate-
gory than dirty books by extending unnecessarily the holding of Lee
from the child and adolescent context where children and adolescents
are required to be present to the adult context where the adults are
voluntarily assembled. This is a destructive, not constructive, inter-
pretation of the Establishment Clause. While the plaintiffs as atheists
are free to deny for themselves any recognition of spiritual existence,
they should not, in claiming the protection of their right to do so, be
allowed to require that other adults in public assemblies be deprived
of their observance, through prayer, of a spiritual existence.
Our 6-6 vote denying en banc consideration by our court leaves the
Supreme Court to review, without input from our full court, the sub-
stantial historical data providing the purpose and meaning of the
Establishment Clause in this context of prayers in adult public assem-
blies. Moreover, it leaves unsatisfactorily addressed the conflict that
is created now between the panel opinion in our circuit and the hold-
ings of the Sixth and Seventh Circuits in Chaudhuri and Tanford.
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