MELLEN v. BUNTING

Nos. 02-1215, 02-1267.

327 F.3d 355 (2003)

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.

United States Court of Appeals, Fourth Circuit.

Decided: April 28, 2003.


Attorney(s) appearing for the Case

ARGUED: William Henry Hurd, State Solicitor, Office of the Attorney General, Richmond, Virginia, for Appellant. Rebecca Kim Glenberg, American Civil Liberties Union Foundation of Virginia, Richmond, Virginia, for Appellees. ON BRIEF: Jerry W. Kilgore, Attorney General of Virginia, William E. Thro, Deputy State Solicitor, Maureen Riley Matsen, Deputy State Solicitor, Alison Paige Landry, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellant. Jane S. Glenn, Brian R. Jones, Jones & Glenn, Roanoke, Virginia, for Appellees. Jordan W. Lorence, Benjamin W. Bull, Alliance Defense Fund Law Center, Scottsdale, Arizona, for Amicus Curiae Specialty Research. Ronald D. Ray, Edna Jenelle Turner, Crestwood, Kentucky, for Amici Curiae First Principles, et al. Steven W. Fitschen, The National Legal Foundation, Virginia Beach, Virginia, for Amicus Curiae Foundation. Ayesha N. Khan, Ilana R. Fisher, Americans United for Separation of Church and State, Washington, D.C.; Rosina K. Abramson, Steven M. Freeman, Erica Broido, Steven C. Sheinberg, Abbey Gans, Anti-Defamation League, New York, New York; Jeffrey P. Sinensky, Kara H. Stein, The American Jewish Committee, New York, New York, for Amici Curiae Americans United, et al.

Before KING, Circuit Judge, HAMILTON, Senior Circuit Judge, and GREENBERG, Senior Circuit Judge of the United States Court of Appeals for the Third Circuit, sitting by designation.


Affirmed in part and vacated in part by published opinion. Judge KING wrote the opinion, in which Senior Judge HAMILTON and Senior Judge GREENBERG joined.

OPINION

KING, Circuit Judge:

General Josiah Bunting, III, the former Superintendent of the Virginia Military Institute ("VMI"), appeals the district court's award of declaratory and injunctive relief, prohibiting VMI from sponsoring a daily "supper prayer." Former VMI cadets Neil Mellen and Paul...

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