The VMI dinner prayer case. The U.S. Supreme Court denied cert. today in Bunting v. Mellen (link via How Appealing), a case that presents federal jurisdiction questions galore. There are some pesky problems of mootness and qualified immunity. Justice Scalia dissents from the denial of cert., and writes about the problems created by forcing courts to decide whether a constitutional right exists before going on to decide whether qualified immunity protects the state official from having to pay damages (qualified immunity being premised on whether or not the constitutional law is clearly established). Here, because the students who sued the Virginia Military Institute had graduated, the claims for prospective relief against the school were moot, so all that remained that could be reviewed was the claim for damages against the school's superintendent, Bunting. But he won the case, because the law wasn't clear and he therefore had immunity.

That leaves the statement that the prayer violated the Establishment Clause just lying there on the books, and Bunting wants it reviewed. He doesn't like that announcement--which conflicts with decisions in other circuits--that a voluntary, generic, before-meal prayer violates the Establishment Clause. Should he be able to invoke Supreme Court review? He won! Well, if this is a jurisdictional limitation, it's a strange constriction of the Supreme Court's lawsaying role, brought about by the Court's own doctrine that locks decisions about constitutional rights inside decisions based on qualified immunity. Maybe the Court should reexamine that, but there's no reason why this must be the case to deal with that problem. (Especially since Bunting is now retired, which may well make the case moot for an additional reason.)

But what is VMI to do if it still wants to have the supper prayer and has not been able to get higher court review of the announcement that it violates the Establishment Clause? If the law is now to be considered clearly established, individual officials at the school will no longer have immunity from personal damages. I suppose they need only file a new lawsuit, seeking a declaratory judgment. It will take a while to get back to the Supreme Court, and by then the Pledge of Allegiance case will have been decided, and the Court of Appeals will have an opportunity to consider the Establishment Clause issue in light of that new case, either eliminating the split in the circuits or sharpening the issue for the next go at the Supreme Court.