WASHINGTON -- An unusual public disagreement broke out on the U.S. Supreme Court yesterday after the justices refused to consider a lower court ruling that a suppertime prayer at the Virginia Military Institute was an unconstitutional establishment of religion.

		On the Net Supreme Court order, including dissents, in pdf format 4th U.S. Circuit Court of Appeals Virginia Military Institute

Justice Antonin Scalia, joined by Chief Justice William Rehnquist, filed a written opinion dissenting from the court's decision not to hear the case. Referring to a 1996 ruling in which the court struck down VMI's all-male admissions policy, Scalia complained: "VMI has previously seen another of its traditions abolished by this court. This time, however, its cause has been ignored rather than rejected -- though the consequence will be just the same."

Scalia's opinion, in turn, provoked a written response from liberal Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer, who said the case did not meet the court's usual standards for granting review.

The court's refusal to take up the case -- a step that requires the consent of four justices -- put off for another day the issue of whether official prayers at public colleges and universities are covered by a 1992 Supreme Court decision that struck down graduation prayers at a public middle school. VMI, located in Lexington, is operated by the Commonwealth of Virginia.

The case arose when two VMI students, represented by the American Civil Liberties Union, brought suit under federal civil rights law against Josiah Bunting III, then the superintendent of the school. They accused Bunting of violating their rights by sponsoring an official prayer at the evening meal attended by all VMI cadets.

Although cadets were not required to join in the prayer, which mentioned God and ended with the saying of grace, they had to remain standing while it was recited.

In 2002 a federal district judge in Lynchburg, Va., issued an injunction against the prayer, calling it a state-sponsored religious exercise. The 4th U.S. Circuit Court of Appeals agreed, but held that Bunting could not be sued personally because the unconstitutionality of such a prayer had not been "clearly established."

For supporters of prayer at VMI, the appeals court created a Catch-22: Because Bunting was no longer in danger of paying damages, he no longer had a personal stake in whether the Supreme Court took the case. But because the lower courts declared the prayer unconstitutional along the way, their constitutional interpretation, under a relatively recent Supreme Court rule, is binding precedent in the 4th Circuit, which encompasses Virginia, West Virginia, Maryland, North Carolina and South Carolina.

In his dissent, Scalia said his colleagues should not let this "procedural tangle of the court's own making" prevent them from considering the important constitutional question of whether the First Amendment prohibits official prayers at state military schools where students are at least 18 years old, and therefore legally considered adults. The 1992 case involved underage middle school students.

Scalia is a longtime critic of decisions insisting on a strict separation of church and state -- he dissented in the 1992 case -- but his complaint about the "procedural tangle" is shared by other students of the court.

Arthur Hellman, a law professor at the University of Pittsburgh, said Scalia had called attention to a "genuine problem." The rule criticized by Scalia, he said, undermined "the premise in our legal system [that] rights under the Constitution are defined by the Supreme Court."

Hellman said the legality of school prayer isn't the only issue that might be left hanging under this approach. Something similar could happen, he said, with a lower court ruling that a particular kind of police search was unconstitutional but that the illegal search was "harmless error" that did not prevent the conviction of a criminal defendant. In that event, the government would "win" the case, as VMI's former superintendent did, but have no grounds to challenge the lower court's interpretation of the Constitution before the Supreme Court.

In their written reply to Scalia's dissent, Stevens, Ginsburg and Breyer said the "procedural tangle" mentioned by Scalia was only one reason the case wasn't accepted for review. The case was moot for other reasons, they said, including the fact that VMI as an institution was not a party to the litigation. They also said "there is no injunction presently barring VMI from reinstating the supper prayer."

Enjoined or not, VMI has done away with the common meal at which the prayer was offered, said Ken White, the school's communications director. Instead, cadets eat in shifts.

"The times have changed as far as rituals of scheduling go," White said.