While many graduates of the U.S. Naval Academy have spent 2003 defending our nation in Iraq, in Afghanistan or on ships at sea, lawyers for the American Civil Liberties Union have been plotting an act of cultural terrorism against the Navy here at home.
The ACLU is targeting the voluntary lunchtime prayer that has been a tradition at the Naval Academy since its founding.
In the ACLU's view, consenting adults have a right to do just about anything they want except say grace in a government cafeteria. Consensual sodomy, it believes, is a sacred right, while consensual public prayer is a sorry ritual to be crushed beneath the boot heel of big government.
True to its creed, the ACLU began maneuvering against the Navy in April, after the U.S. Court of Appeals for the 4th Circuit ordered the Virginia Military Institute to cancel its supper prayer.
Theoretically, VMI violated the First Amendment. "Congress," it says, "shall make no law respecting an establishment of religion." In essence, the judges concluded that when Virginia allowed its cadets to say a nondenominational prayer it was the equivalent of Congress establishing a federal religion in the very corner of Virginia where Stonewall Jackson used to teach.
Although absurd, the appeals court decision was the predictable progeny of a long line of abominable Supreme Court decisions. That court banned prayer in public grade schools and high schools. The appeals court merely extended the principle to a public college.
That gave the ACLU an opening to attack the Navy.
Maryland ACLU Director Susan Goering sent the academy a letter. "We believe that when you have had a chance to review the 4th Circuit's opinion," she said, "you will agree that the Naval Academy's mandatory lunchtime prayer cannot pass constitutional muster, and will therefore cease the practice."
Never mind that the prayer is not "mandatory." What mattered was Goering's implicit threat to sue. But the Navy did not retreat. In August, it announced it would keep its prayer, and the ACLU went ballistic.
"We tried things the nice way, and they've told us to pound sand," ACLU lawyer David Rocah told the Baltimore Sun. "If someone is interested in challenging" the prayer, he said, "we'd be perfectly happy to talk to them about that."
Republican Rep. Walter Jones of North Carolina did not sit idle at such threats. If the ACLU can't be stopped now, he told me, tomorrow it will "try to control what prayer is said in the foxhole."
"I have seen the federal courts take one right after another away from people of faith in this country," said Jones, "and I think it's time to fight."
He introduced legislation to codify the authority of the military academies to offer "voluntary, nondenominational prayer" at academy events. Designed to send an unsubtle signal to any court that entertains an ACLU suit against the Navy, the proposal is likely to be included in next year's Defense authorization.
But will it stop a judge from banning the Navy's prayer? I doubt it.
The same federal courts that declared same-sex sodomy a right and banned the Ten Commandments from state buildings will not be deterred by an ordinary act of Congress.
If the federal judiciary stays on trend, prayer will be banned at Navy, and the ACLU will set its sights on a bigger target -- perhaps banning military chaplains.
Must Congress surrender? No. Just as the Navy has faithfully defended our democracy, our democratically elected leaders must faithfully defend the Navy. The Constitution says Congress has the power to "establish" the lower federal courts and that the appellate jurisdiction of the Supreme Court shall be set "with such exceptions, and under such regulations as the Congress shall make." Explaining this language, Justice Joseph Story, who was appointed by President James Madison, said: "Of course, as the judicial power is to be vested in the supreme and inferior courts of the Union, both are under the entire control and regulation of Congress."
If the ACLU files suit against Navy's prayer, Congress should pass a law lifting the issue from the jurisdiction of the courts. Then, borrowing lawyer Rocah's words, it should tell the ACLU to go pound sand.