Sep 15, 2011

The Virginia Military Institute — a public educational institution that employs a militaristic style — has historically presented a daily prayer, which was mandatory for some students, before dinner. The trial court found the practice unconstitutional in light of the highly coercive nature of VMI’s training methods. VMI appealed the decision to the Fourth Circuit, arguing that the prayer grew out of a longstanding tradition of prayer in the military, and should be permitted under the U.S. Supreme Court’s decision upholding the opening of legislative sessions with prayer, Marsh v. Chambers. In August 2002, we authored an amicus brief in support of the plaintiffs’ position, arguing that the holding of Marsh should be limited to its facts, and that the emphasis on unity and conformity at VMI, as well as the pervasively coercive nature of all aspects of its operations, rendered the prayer unconstitutional. In April 2003, the Fourth Circuit agreed with us, ruling that the prayer violated the Establishment Clause because of the coercive nature of VMI’s operations, and that Marsh did not provide the relevant analysis. On August 13, 2003, by an equally divided vote, the Fourth Circuit denied a petition for rehearing en banc filed by VMI. Virginia Attorney General Jerry Kilgore filed a petition asking the U.S. Supreme Court to take the case, but the Court denied certiorari in April 2004.