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First Principles, the Coalition of American Veterans and
the Naval Aviation Foundation filed Amici, friend of the court briefs, on
July 16, 2002, in the Fourth Circuit Court of Appeals supporting the
Virginia Military Institute (VMI) in the case filed by the American Civil
Liberties Union in May 2001, on behalf of two VMI cadets objecting to the
student-led prayer before the evening meal. Since the Institute was
founded until the present case, there has been an unbroken history of
cadet prayers. The supper prayers are the prayers of a soldier-- for the
Institute, the Corps, the Nation, Family and Friends, the Body, Success,
and Strength.
U.S. District Judge Norman K. Moon, ruling in January
2002, declared that “the only logical conclusion” to any defense of
the prayers is that “part of the Institute’s educational mission…is
religious indoctrination.” The Coalition of American Veterans and
the Naval Aviation Foundation filed an amicus brief to reverse Judge Moon’s
decision based on the following:
VMI, Primarily a Military School.
The Virginia Military Institute is first and foremost historically a
Military Institute and the cadets constitute part of the Virginia
Militia, under the Code of Virginia §23-109: VMI, where ROTC training
is mandatory for every cadet, is therefore also a part of America’s
national defense establishment. The Institute’s name was selected,
according to state legislative records, to reflect VMI’s “characteristic
feature” as “Military” and set it apart from civilian colleges.
Military Life at VMI.
The VMI cadets’ schedule is regimented and they do not have the
personal freedom students at civilian universities enjoy. Cadet life is
physically adverse and academically rigorous because of high military
leadership standards. The lower Court failed to apply the military
standard to VMI, even though it acknowledged VMI’s atmosphere was
unlike civilian universities. ALL students are “cadets” and comprise
the Corps of Cadets, ALL cadets participate in Officer Training
Programs, they live in “barracks” not dorms, are subject to
inspections at all times, assemble in formations, march to meals at
appointed times, eat in a mess hall not restaurants or lunchrooms, wear
uniforms, and are limited as to items that can be kept in their very
barrack’s rooms.
VMI Under “Military Necessity”
Doctrine. Court have consistently deferred
to the judgment of the military leadership in cases regarding military
personnel. The judicial branch of government has no jurisdiction over
the armed forces. The supreme Court ruled in 1955, that “Judges are
not given the task of running the Army.” Orloff v. Willoughby,
345 U.S. 83 (1953). The United States Constitution places the nation’s
Armed Forces under the authority and jurisdiction of the Congress and
President, when acting as Commander-in-Chief, not the judiciary (Article
I, section 8, and Article II, section 2, Cl. 1). In Chappell v. Wallace,
the supreme Court ruled that,
“centuries of experience have developed a hierarchical
structure of discipline and obedience to command, unique in its
application to the military establishment and wholly different from
civilian patterns. Civilian courts must, at the very least, hesitate
long before entertaining a suit which asks the court to tamper . . .”
462 U.S. 296, 300 (1983).
Military History.
VMI is unique among the nation’s military academies because it sent
cadets into battle on May 15, 1864, when ten VMI cadets were killed in
action and 47 wounded at the Battle of New Market. A battle streamer
awarded for that action still flies above VMI colors. VMI cadets were
sent into battle with official and public prayer. Jennings C. Wise, a
military historian of VMI, described the scene as the cadets gather for
the final 26-mile march to New Market:
Before the command to march was given, a thing occurred which
made a deep impression upon us all-a thing which even now may be a
solace to those whose boys died so gloriously that day. In the gloom
of the night, Captain Frank Preston, neither afraid nor ashamed
to pray, sent up an appeal to God for His protection of our little
band; it was an humble, earnest petition that sunk into the
heart of every hearer. Few were the dry eyes, little the frivolity,
when he had ceased to speak of home, of father, of mother, of
country, of victory and defeat, of life, of death, of eternity…
Military Precedent.
Prayer has long been an essential part of the adverse training system of
VMI since it’s beginning on November 11, 1839. Throughout its long
history, VMI has been led by distinguished senior military officers and
has produced many extraordinary military leaders. The very martial
spirit of VMI revolves around the Battle of New Market and two
distinguished generals, General Thomas “Stonewall” Jackson, who
served on the VMI faculty from 1851 to 1861, and VMI’s most famous
alumnus, George C. Marshall, who went on to become Secretary of Defense
and also was awarded the Nobel Peace Prize. Marshall said, “the
spiritual life of the soldier is more important than his physical
equipment.”
Military Necessity.
Under the historic doctrine of “military necessity” the Virginia
Military Institute’s practice of a mealtime prayer is perfectly
acceptable under the authority of the school’s military leadership
because laws of civilian society are not applicable due to the special
nature of VMI’s military training. Prayer is a “military necessity”
to the Military. General George Washington said, “The blessing and
protection of heaven are at all times necessary, but especially so in
times of public distress and danger.”
American Military Leadership’s Support
for Prayer. The importance of prayer in
the formation and preservation of morale is evidenced by the writings of
military leaders, as well as numerous military prayer books published
both by private entities and also the Government Printing Office since
1774. A sampling of two Prayer Books distributed to our armed forces
during World War II and the Korean War contain the prayers and their
background from: 34 senior uniformed military authorities,
including, 4 & 5-star generals from the: Army: Bradley,
Clark, Clay, Collins, Devers, Eisenhower, MacArthur, Marshall, Patton; Navy:
Nimitz, Schonland; Airforce: Vandenberg; Marines: Cates,
Holcomb, Vandergrift; Coastguard: O’Neill, Waesche; 11
senior civilian military authorities, including secretaries of the
Army, Navy, and Air force; 11 military chaplains; and 2
Commanders-in-Chief.
Science Confirms American Military
Practice of Prayer. Science confirms the
judgment of Military authorities regarding prayer. “The Studies in
Social Psychology in World War II Series,” produced by the Social
Science Research Council, was one of the largest social science research
projects in history. Volume II, The American Soldier, Combat and Its
Aftermath, Princeton University Press, (1949), reported data on the
importance of prayer to officers and enlisted infantrymen. Prayer was
selected most frequently as the soldier’s source of combat motivation.
The motivation of prayer was selected over the next highest categories
of “thinking that you couldn’t let the other men down,” and “thinking
that you had to finish the job in order to get home again.” From the
responses, “did not help at all,” “helped some,” and “helped a
lot,” 70% of enlisted men in the Pacific Theatre (n = 4,734), and 83%
in the Mediterranean theatre (n = 1,766) responded “helped a lot,”
as did 60% of Infantry officers (n = 319).
These data would suggest that combat men who had
experienced greater stress were at least as likely to say they were
helped by prayer as those who had been subjected to less stress”
(p. 176)…[T]he fact that such an overwhelming majority of
combat men said that prayer helped them a lot certainly means that
they almost universally had recourse to prayer and probably found
relief, distraction, or consolation in the process (p. 185).
[Emphasis added.]
There Is No Right To Serve In The Military.
American military service is a voluntary duty. The U.S. Military does
not include those who object to military standards of uniformity, good
order and discipline because its adversity requires great sacrifice,
even possible death. These high military standards permitted the two VMI
cadets objecting to prayer, to raise the matter through the proper
channels. The two cadets volunteered to become members of the VMI Corps
of Cadets, but instead of coming submitting to the uniformity and the
good order and discipline of those senior to them, have instead taken
the matter to court. As conscientious objectors the two cadets would,
based on their incompatible beliefs with military uniformity been
exempt. In the military, the needs of the individual are always
subordinate to the cohesion of the unit. Cohesion requires compliance
with existing values of the military unit, to the exclusion of those
whose values are incompatible. The supreme Court has ruled that:
loyalty, morale, and discipline are essential attributes of all
military service, [and what is] likely to interfere with these vital
prerequisites for military effectiveness therefore can be
excluded from a military base. (Brown v. Glines, 444 U.S. at 357, n.
14 354)
And as reported in the Yale Law Journal:
To a certain extent, at least, the military sector of a society
must function outside the realm of democratic principles, including
the principle of freedom of expression . . . Certainly, members of
the armed forces, at least when operating in that capacity, can be
restricted in their right to open discussion.
VMI was established and functions today as a military academy. Since
the country’s founding, America’s military leadership has considered
prayer a military necessity and a vital element of military regimen.
This well documented determination of military leadership regarding the
importance of prayer, places VMI’s non-sectarian prayer beyond the
reach of the courts.
B’nai B’rith and Anti-Defamation League
Enter Case: On August 19, 2002, a brief Amicus
Curiae in support of the plaintiff's call for removal of public prayer
at Virginia Military Institute was filed jointly by Americans United for
Separation of Church and State, the Anti-Defamation League, and the
American Jewish Committee. They argue that VMI is a public educational
institution, and conclude that the non-sectarian supper prayers for our
nation and military represent "religious fanaticism and ideological
proselytizing [that] are engendering animosity and destruction
worldwide." The Anti-Defamation League was created in 1913 by B’nai
B’rith to promote an education campaign to correct stereotypes about
the history of the Jews. In the 1920’s the ADL began conducting
political survellience and building extensive files on Americans
belonging to “extremist groups” in the United States. Their
intelligence on political extremism was so well developed that the
Justice and State Departments soon relied upon their files for their own
purposes. (p. 76)[1] Following World War II, all three groups
became more focused on law and legislation with a more aggressive
posture for social change. (p. 61). "Between 1947 and 1969, the AJ
Committee and the ADL participated as amici curiae in more church-state
cases at the Supreme Court level than any other organized interest group
except for the American Jewish Congress and the ACLU." (page 100).
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