Mellen v. Bunting, 02-1215.

• Citation: 341 F.3d 312
• Decision Date: 13 August 2003
• Docket Number: No. 02-1215.,No. 02-1267.,02-1215.,02-1267.
• Parties: 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.; 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. 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; 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.
• Court: U.S. Court of Appeals — Fourth Circuit

341 F.3d 312

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.; 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.

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; 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.

No. 02-1215.

No. 02-1267.

United States Court of Appeals, Fourth Circuit.

FILED: August 13, 2003.

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 petition for rehearing en banc, Judges Widener, Wilkinson, Niemeyer, Luttig, Williams, and Shedd voted in favor thereof. Chief Judge Wilkins, along with Judges Michael, Motz, Traxler, King, and Gregory, voted against rehearing en banc. A majority of the active judges having failed to vote in favor of rehearing en banc, rehearing en banc is also hereby denied.

Judges Widener, Wilkinson, and Niemeyer wrote separate opinions, 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.

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 secular purpose from a sincere one;" "General Bunting has proffered several 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 religious and has, by its nature, both a religious purpose and effect.'"

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 v. Clauson, 343 U.S. 306, 315, 72 S.Ct. 679, 96 L.Ed. 954 (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, provided 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 September 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 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 flagrantly 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 ceremony. And the court which outlawed the VMI prayer, has both an invocation and a benediction by a minister of the Gospel in its naturalization 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.

APPENDIX

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

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

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
                

                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,

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