The New York Times
April 27, 2004

 

Justices Won't Hear Military-College Appeal on Dinner Prayer

By LINDA GREENHOUSE
 

 

WASHINGTON, April 26 — The Supreme Court refused on Monday to consider an appeal by the State of Virginia to permit the state-sponsored Virginia Military Institute to return to the practice of dinner-hour prayers. Two lower federal courts had declared the cadet-led prayers unconstitutional.

Only Justice Antonin Scalia and Chief Justice William H. Rehnquist — two short of the necessary four justices — voted to hear the appeal. The court's announcement came after the court debated the case internally for more than two months.

According to the court's public docket, the justices had taken up the case at their private weekly conference on eight occasions since February, a fact that makes it likely that they had considerably more to say than they revealed in the brief opinions they finally published on Monday: Justice Scalia's seven-page dissent and Justice John Paul Stevens's four-page explanation of why the court chose not to grant the appeal.

Justice Stevens, who was joined in his explanation by Justices Ruth Bader Ginsburg and Stephen G. Breyer, said the court had no jurisdiction because the two cadets who brought the lawsuit in 2001 had graduated and because Josiah Bunting III, the military college's superintendent, whom the cadets sued, had retired.

"None of the parties has a present stake in the outcome," Justice Stevens said.

He added that "the unique features of V.M.I.," including its "emphasis on submission and conformity," perhaps gave the case limited applicability to other cases involving government-sponsored prayers or invocations on state college campuses.

Justice Stevens noted that other federal courts had rejected challenges to prayer at public colleges on the ground that college students were mature enough to resist peer pressure to conform. In its decision last April in the Virginia Military Institute case, the United States Court of Appeals for the Fourth Circuit, in Virginia, took note of those cases, but then observed, "Although V.M.I.'s cadets are not children, in V.M.I.'s educational system they are uniquely susceptible to coercion."

The nondenominational prayer was part of the "supper roll call" in the mess hall. Cadets in the mess hall were obliged to remain standing but did not have to take part in the prayer. The Virginia attorney general, Jerry W. Kilgore, argued that the decision cast doubt on a lunchtime prayer recited at the United States Naval Academy.

Justice Scalia, whose dissenting opinion on Monday was also signed by the chief justice, referred to the Supreme Court's decision in 1996 to require the institute, which was then all male, to admit women. Justice Scalia dissented from that decision, while Chief Justice Rehnquist supported it.

"V.M.I. has previously seen another of its traditions abolished by this court," Justice Scalia said, adding, "This time, however, its cause has been ignored rather than rejected — though the consequence will be just the same."

Justice Scalia noted a procedural obstacle to reviewing the case: while the appeals court declared the prayer unconstitutional, it ruled at the same time that because the state of the law was unclear, Superintendent Bunting was entitled to "qualified immunity," meaning that he could not be sued for damages. The Supreme Court's jurisdictional precedents indicate that a defendant who has won an immunity claim has technically won the case and is not in a position to appeal it. Justice Scalia said the court should change that rule to preserve the right to appeal on a substantial constitutional issue.

Also on Monday, the court agreed to hear a constitutional challenge to the United States Tax Court's procedure for deciding major cases, those in which the Internal Revenue Service claims tax deficiencies of more than $50,000.

Under an internal rule, the court refers those to a special trial judge, who conducts a full trial and makes a recommendation to the court. The special judge's report is not given to the taxpayer and does not become part of the public record of the case.

This secrecy was challenged by two men, Burton W. Kanter and Claude M. Ballard, who were involved in a $30 million tax dispute and were eventually found liable for civil tax fraud. After learning through a leak that the special judge had recommended against finding liability, they argued that they had a due-process right to the report in order to prepare their appeal.

Two federal appeals courts upheld the government's position that the report was part of the court's internal deliberation, not subject to disclosure. The cases are Ballard v. Commissioner of Internal Revenue, No. 03-184, and Estate of Kanter v. Commissioner of Internal Revenue, No. 03-1034.