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WASHINGTON — The Supreme Court may decide this week to consider whether the Virginia Military Institute’s longstanding tradition of praying before dinner violates the First Amendment. Bunting v. Mellen, No. 03-863, is one of dozens of cases on the agenda at the Supreme Court’s private conference on Feb. 20. Also on the calendar for that conference is Rumsfeld v. Padilla, No. 03-1027, a test of whether the president has the power to seize and detain U.S. citizens on U.S. soil as enemy combatants without affording them counsel. The court is expected to announce after the conference or on Feb. 23 whether it will add these or other cases to its docket. The VMI case involves a challenge to a mealtime custom for most students at the state-operated military college in Lexington, Va. After cadets assemble in the dining hall, announcements are made, and a cadet reads aloud a prayer written by the VMI chaplain. A different prayer is read for each day of the week, except Saturday, when dinner is more casual. Cadets are not obligated to say the prayer, close their eyes, or bow their heads, but they must remain standing and silent. The prayers invoke the name of God, and some refer to “Almighty God,” “Father God,” �Heavenly Father,” and “Sovereign God.” Each prayer finishes with “Now O God, we receive this food and share this meal together with thanksgiving. Amen.” The American Civil Liberties Union of Virginia filed suit on behalf of cadets Neil Mellen and Paul Knick against VMI then-Superintendent Josiah Bunting III. The ACLU contended that forcing students to stand silently for a prayer that invokes God’s name violates the establishment clause of the First Amendment, and that the courts should not view state-funded higher education any differently than prayer in elementary and secondary schools. In January 2002, U.S. District Judge Norman Moon deemed the ceremony “a state-sponsored religious exercise” and a violation of the First Amendment separation of church and state. Moon, appointed to the bench by President Bill Clinton in 1997, sits in the Western District of Virginia. A three-judge panel of the U.S. Court of Appeals for the 4th Circuit affirmed the injunction. The circuit said cadets were being “coerced” into prayer against their will. VMI petitioned for rehearing en banc and was denied, with three judges dissenting. The state of Virginia is now asking the Supreme Court to take up the case. Virginia Solicitor William Hurd, on behalf of VMI, argues in his petition that the daily prayers “mirror those heard during ceremonies in the United States armed services” and do not violate the cadet’s First Amendment rights since VMI is a military school. The prayer, he wrote, “serves legitimate secular purposes,” and the cadets are adults who may choose not to “pay attention.” Hurd quoted 4th Circuit Judge J. Harvie Wilkinson III, who wrote a dissent in the case. “The VMI prayer performs an accommodationist function: It facilitates the cadets’ exercise of their spiritual needs and free exercise rights,” the petition states. “Given the rigors of life in military school and the limited time that cadets have for themselves, this brief period for personal reflection and, if they so choose, spiritual meditation, is significant.” Rebecca Glenberg, legal director of the ACLU of Virginia, states in her brief that before Mellen and Knick filed the suit, “all cadets were required to attend the entire [supper roll call] ceremony, including the prayers, in order to eat during the first seating of supper.” The second seating is available only to those cadets who participate in sports or have other special circumstances. After the complaint was filed, upperclassmen could avoid the prayers by eating early or by “falling out of formation before entering the mess hall,” according to Glenberg’s brief. But first-year students, called “rats,” continued to be required to attend the roll call including the prayers, she wrote. This is the second time in a decade that a legal challenge to a VMI tradition has been raised before the Supreme Court. The school did not admit women until June 1996, when the Court ordered the college to become coeducational with a 7-1 decision in United States v. Virginia. Virginia officials are being supported by a number of amici. The Coalition of American Veterans Inc. and the Naval Aviation Foundation Inc. are backing Virginia, as are the states of Texas, Alabama, Delaware, Indiana, Kansas, Louisiana, Mississippi, Nebraska, Ohio, Oklahoma, South Carolina and Utah. R. Ted Cruz, solicitor general of Texas, wrote on behalf of Texas and the 11 other amici states that “the Establishment clause does not bar public colleges and universities from including non-sectarian prayers at formal school functions voluntarily attended by mature adults.” OTHER CASES UP FOR REVIEWLeocal v. Ashcroft, No. 03-583. Whether the crime of driving under the influence and causing serious bodily injury without criminal intent is an aggravated felony that can result in an alien’s deportation. � Freeman v. Commissioner of Internal Revenue, No. 03-660. Whether a client can be assessed income tax on an entire jury award when part of the award goes to the client’s attorney as a contingent fee. (The same issue is presented in two other cases on the Feb. 20 agenda: Commissioner of Internal Revenue v. Banks, No. 03-892, and Commissioner of Internal Revenue v. Banaitis, No. 03-907.) � Ashcroft v. Seneca-Cayuga Tribe of Oklahoma, No. 03-740. Whether a bingo dispenser machine at tribal gaming facilities in Indian country is a “gambling device” under the Johnson Act and the Indian Gaming Regulatory Act. � Roe v. United States, No. 03-751. Whether the Internal Revenue Code, which establishes an accountant-client privilege, protects the identity of clients who participated in tax shelters promoted by the tax practitioner. � California Franchise Tax Board v. Farmer Bros. Co., No. 03-776. State corporate tax deduction and discrimination against interstate commerce. � Reed v. Democratic Party of Washington State, No. 03-801. Whether a blanket primary ballot in Washington state, which allows voters to pick candidates from all parties, violates political parties’ First Amendment right of association. � Coyote Valley Band of Pomo Indians v. California, No. 03-804. State obligation to negotiate with Native American tribes under the Indian Gaming Regulatory Act. � Stewart v. Dutra Construction Co., No. 03-814. Whether someone working on a stationary dredging platform qualifies for seaman status under the Jones Act. � Tockes v. Air-Land Transport Services Inc., No. 03-817. Evidence of disability under the Americans With Disabilities Act. � Crawford v. Martinez, No. 03-878. Whether arriving aliens who have been apprehended at the U.S. border and ordered returned must be released pending removal. � Onyx Acceptance Corp. v. Lampley, No. 03-901. Whether punitive damages can be assessed against employers in certain Title VII Civil Rights Act violations. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in preparing this column. Adina Matusow is an editorial intern for Legal Times, a Recorder affiliate based in Washington, D.C.

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