Laying Low the High Flying Evangelicals at the United States Air Force Academy? Thanks, But No Thanks

Journal of Law and Education, Oct 2007 by Fitschen, Steven W

VMI's adversative method of education emphasizes the detailed regulation of conduct and the indoctrination of a strict moral code. Entering students are exposed to me "rat line," in which upper-classmen torment and berate new students, bonding "new cadets to their fellow sufferers and, when they have completed the 7-month experience, to their former tormentors." At VMI, even upperclassmen must submit to mandatory and ritualized activities, as obedience and conformity remain central tenets of the school's educational philosophy. In this atmosphere, General Bunting reinstituted the supper prayer in 1995 to build solidarity and bring the Corps together as a family. In this context, VMI's cadets are plainly coerced into participating in a religious exercise.61

Unlike at VMI, at the Academy, the activities to which Cook objected are not co-opted religious practices. Rather, they are authentic exercises of religion. Thus, to the extent that the Mellen court's analysis is correct, i.e., to the extent that the VMI prayers were not voluntary, that analysis is simply inapplicable here.

Second, in claiming that the Academy's activities would be struck under any of the standard Establishment Clause tests,62 Cook is, as just described, following the Mellen court's lead.63 However, the Mellen court at least explained why it was rejecting the Marsh test.64 Cook never did so. She merely asserted that there are three Establishment Clause tests. She did not even acknowledge the existence of Marsh until forty-two footnotes later. Then she finally relied on the assumption that the courts would recognize "the coercive nature of military academies and extend its primary and secondary school jurisprudence to military academies. Justice Scalia and former Chief Justice Rehnquist in their dissenting opinion for [sic] denial of certiorari in Mellen indicated that they would be reluctant to do so."65 Cook continued by citing Justice Scalia; yet, "the language referring to 'traditional religious observance in military institutions' indicates that he would likely analyze religion in the military as the Court did with respect to religion and prayer at the opening of a legislative session in Marsh."66 While space forbids an independent Marsh analysis here, I merely suggest that the failure of Cook to undertake a Marsh analysis was a significant omission given her recognition that the legitimacy of everything else she had written was dependent upon both a finding of coercion and a rejection of the Marsh approach, which the Court recently cited in McCreary County and Van Orden.67

Finally, Cook asserted that the activities of Evangelical chaplains are problematic on two grounds. First, she found it objectionable that they actually proclaim the Christian message.68 Second, she argued that their activities (which she recognized are covered by the Free Exercise Clause)69 create Establishment Clause problems and therefore must be stopped. The first objection is really more of a philosophical question-should chaplains do this or not?-and to the extent that it is a legal question, it is largely subsumed by her second point, which I will address.