Petition for Writ of Certiorari — Tanford v. Brand
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Av] RLLAD
QE 1S 94 way 27
No.
IN THE SUPREME COURT OF
THE UNITED STATES
October Term 1996
James A. TANFORD, and
Joseph Anthony Urbanski,
Petitioners,
v.
Myles BRAND, in his individual and
official capacities as President of
Indiana University; and
Kenneth R.R. Gros Louis, in his
individual and official capacities
as Vice President and Chancellor of
Indiana University at Bloomington,
Respondent.
ee
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
May 27, 1997 Richard A. Waples
WAPLES & HANGER
410 N. Audubon Road
Indianapolis, Indiana 46219
317/ 357-0903
317/ 353-9765 (fax)
Richwaples@aol.com
Counsel of Record
Or v\
IT.
QUESTION PRESENTED
Whether the Establishment Clause is violated
when state university officials select a cleric to
give two prayers at graduation, provide him
instructions on the content of those prayers,
dress him in university regalia and include him
- on the dais with high ranking state university
officials, and request the audience to stand and
join the cleric in prayer?
Whether Lemon v. Kurtunan is still the
controlling law in cases involving direct
governmental sponsorship of religious activity?
QUESTION PRESENTED
AUTHORITIES CITED
OPINIONS BELOW
JURISDICTION
TABLE OF CONTENTS
CONSTITUTIONAL PROVISION INVOLVED
STATEMENT OF THE CASE
REASON FOR GRANTING THE WRIT
I.
THE SEVENTH CIRCUIT IGNORED
CONTROLLING SUPREME COURT
PRECEDENT WHEN IT DID NOT
APPLY THE LEMON TEST TO STATE
SPONSORED RELIGIOUS ACTIVITY ...
THE SEVENTH CIRCUIT’S FAILURE TO
APPLY THE LEMON TEST CONFLICTS
WITH DECISIONS REACHED IN OTHER
CIRCUITS AND ILLUSTRATES THE
CONFUSION-REIGNING IN THE
LOWER COURTS ABOUT THE STATUS
CP GRO 8 ans Se Re RO ORE
il
eaeceoesenosoi4@oneeeetew$eoee»egeeeqaeée#¢28s «6
AEE Re tee tor
Il. THE SEVENTH CIRCUIT APPLIED
THE "TRADITION" EXCEPTION OF
MARSH V. CHAMBERS TO
GRADUATION PRAYER, WHICH
CONTRAVENES SUPREME COURT
PRECEDENT AND _ CONFLICTS
WITH OTHER CIRCUITS ........
IV. THE SEVENTH CIRCUIT
CONTRAVENED SUPREME COURT
PRECEDENT AND THE DECISIONS
OF OTHER CIRCUITS WHEN IT
RULED THAT. PRAYER IS
ACCEPTABLE IF NONSECTARIAN .
V.THE SEVENTH CIRCUIT
CONTRAVENED LEE V. WEISMAN BY
HOLDING HELD THAT THERE IS NO
"ENTANGLEMENT" WHEN STATE
OFFICIALS SELECT A CLERIC AND
INSTRUCT HIM CONCERNING THE
CONTENT OF THE PRAYER ........
VI. THE SEVENTH CIRCUIT'S
DECISION THAT PRAYER MAY BE
USED TO SOLEMNIZE A PUBLIC
CEREMONY IS INCONSISTENT
WITH SUPREME COURT
PRECEDENT AND CONFLICTS
WITH OTHER CIRCUITS ........
iil
16
VII.
CONCLUSION
APPENDIX
THE SEVENTH CIRCUIT’S "DE
MINIMIS" EXCEPTION FOR BRIEF
PRAYERS CONTRAVENES
SUPREME COURT PRECEDENT
AND THE DECISIONS OF OTHER
es Se eos oe en arr
THE SEVENTH CIRCUIT
CONTRAVENED DECISIONS OF
THE SUPREME COURT AND OTHER
CIRCUITS BY HOLDING THAT
GRADUATION PRAYER IS EXEMPT
FROM THE ESTABLISHMENT
CLAUSE BECAUSE IT IS
bs a ee
iV
AUTHORITIES CITED
Cases:
A.C.L.U. of Georgia v. Rabun Co. Chamber of
Commerce, 698 F.2d 1098 (11th Cir. 1983) ... 21, 26
A.C.L.U. of N.J. v. Black Horse Pike Regional
Board of Edu. , 84 F.3d 1471
152 2 aS ae oe re 12, 15, 18, 21
ACLU v. Schundler,
106 F536 3655 Gk Cie, T9557) noi ne eas 26
American Jewish Congress v. Beverly Hills,
90 F.3d 379: te Cir. 1996) occ caes 26
Board of Education of Kiryas Joel Village
School District v. Grumet,
eB Rg) ee ee 11
Board of Education of Kiryas Joel Village
School District v. Grumet,
Se Te Ge CA OES ES Soe he 17
Capitol Sq. Rev. and Adv, Board v. Pinette,
555 5. Ch ree 8 hh ER ee 11
County of Allegheny v.
A.C.L.U. Greater Pittsburgh Chapter,
AS Be |. ee eae 10, 14, 17,
Easter. Bonham y. District of Col. Library Admin. ,
989 F.2d 1242 (D.C. Cir. 1993) .......... 24
Edwards v. Aguillard,
ee ee) 10, 14, 15, 17
Engle v. Vitale, 370 U.S. 421 (1962) ....... 20, 25
Epperson v. Arkansas, 393 U.S. 97 (1968) ...... 17
Even Jones v. Clear Creek Independent
School Dist., 977 F.2d 963 (Sth Cir 1992) ... 16
Harris v. Joint School District No. 241,
41 F.3d 447 (9th Cir. 1994),
vacated, 115 S. Ct. 2604 (1995) .......... 21
Ingebretsen v. Jackson Public School Dist. ,
Se are Gre Gas WOO Sc eee wes os 13, 18
Fifth Circuit case, Ingebretsen v.
Jackson Public School Dist.,
oe ere Ge es SR 8 od oe ew een 19
Ingebretsen v. Jackson Public School Dist.,
me Pe ere Gee Gale FO 6 Se ee tae 24
Jager v. Douglas Co. School Dist.,
862 F.2d 824 (11th Cir. 1989) . 12, 15, 21, 24, 26
Karen B. v. Treen,
653 F.2d 897 (Sth Cir. 1981) .......... 18, 22
vi
Lamb’s Chapel v. Center Moriches
Union Free School District,
508 U.S. 384 (1993) ..........2000- 11, 23
Larkin v. Grendel’s Den, Inc.,
ee. RS as 5% oles. 4 oS gee tee 10
Lee v. Weisman,
505 U.S. 577 (1992) ... 9-11, 14, 17, 19, 23, 25
Lemon v. Kurtzman,
we mee. ¢5 | 6,9
Doe v. Duncanville Independent School Dist.,
ee ae, re 27
Marsh v. Chambers, 463 U.S. 783 (1983) .... 6, 13
North Carolina Civil Liberties
Union Legal Foundation v. Constangy,
ee ae GS Te Ae 15
Robinson v. City of Edmond,
68 F.3d 1226 (10th Cir. 1995) ......... 15, 26
Rodriguez De Quijas v.
Shearson/American Express,
SE i Se 12
Rosenberger v. University of Virginia,
Ck 11
Vii
School District of the City of
Grand Rapids v. Ball, 473 U.S. 373 (1985) ... 17
Tanford v. Brand,
883 F. Supp. 1231 (S.D. Ind. 1995),
aff'd, 104 F.3d 982 (7th Cir. 1997) ..... passim
Thurston Motor Lines Inc. v.
Jordan K. Rand, Ltd., 460 U.S. 533 (1983) ... 12
Wallace v. Jaffree, 472 U.S. 38 (1985) ...... 18, 24
Washegesic v. Bloomingdale Public Schools,
FF Pia OTe Cee Ge BPO ee ee ec es 26
Widmar v. Vincent, 454 U.S., 263 ........... 16
Constitutions, Statutes:
pS oy By, ee re ae ae 1
yp ge. ao ewer ry Seer err ee a ae 1
Fie Ree BO De ree ee ee ]
Se ees Oe ke 8 eres bt eed Fe as 1
Us Cs SS. o's Sh ee os EON 2
Vili
:
Weel re
OPINIONS BELOW
The opinion of the United States Court of Appeals
for the Seventh Circuit is reported as Tanford v. Brand,
104 F.3d 982 (7th Cir. 1997). It is reprinted in the
Appendix at a-1. The opinion of the district court entering
summary judgement is reported as Tanford v. Brand, 932
F. Supp. 1139 (S.D. Ind. 1996) and is reprinted at a-12.
The opinion of the district court denying preliminary
injunctive relief is reported as Tanford v. Brand, 883 F.
Supp. 1231 (S.D. Ind. 1995) and is reprinted at a-30.
JURISDICTION
Plaintiffs-Petitioners James A. Tanford, and Joseph
Urbanski sued the defendant state university official under
42 U.S.C. § 1983 for asserted violations of the
Establishment Clause of the First Amendment to the U. S.
Constitution. The district court had jurisdiction to hear the
case pursuant to 28 U.S.C. §§ 1331 & 1343.
On May 4, 1995 the district court denied preliminary
injunctive relief, and on July 15, 1996 entered summary
judgment in favor of the defendants. Plaintiffs filed their
Notice of Appeal on August 12, 1996. The court of
appeals had jurisdiction under 28 U.S.C. § 1291.
On January 16, 1997, the court of appeals affirmed and
issued its judgment. On February 25, 1997, the court of
appeals denied petitioners’ petition for rehearing with
suggestion for rehearing en banc. This Court has
jurisdiction under 28 U.S.C. § 1254(1). May 25, 1997
was a Sunday and May 26, 1997 was a federal holiday.
CONSTITUTIONAL PROVISION INVOLVED
The following constitutional provision is relevant to the
determination of this case: "Congress shall make no law .
. . Fespecting an establishment of Religion{.]" U.S. Const.
amend. I.
STATEMENT OF THE CASE
A. The Petitioners
Petitioners are a student and a professor at Indiana
University. Petitioner James A. Tanford teaches in the
School of Law. His attendance at graduation is not
voluntary; he attends only when he is asked to attend by the
Dean in order to represent the law school. He is a Roman
Catholic and objects to nondenominational public prayer on
religious grounds, believing them to trivialize and
desanctify communication with his god.'
Petitioner Joseph A. Urbanski, who was valedictorian
of his high school class, is an undergraduate at Indiana
University who expects to graduate in May 1999. He was
raised in a religious household, but after considerable
study, personal experience, and contemplation, became an
atheist. He objects to being prayed to by state officials, and
1See Matthew 6:5-15 ("when thou prayest, thou shalt not be as
the hypocrites are: for they love to pray [where] they may be seen of
men.... When thou prayest, enter into thy closet [and] pray to thy fa-
ther which is in secret"). See also Catechism of the Catholic Church
647 (1994) (the appropriate places for prayer are the home, shrines,
monasteries, and the church, but not in public).
resents the support the state provides to theism by the
practice of including prayers to a god at public ceremonies.
B. Prayer at Indiana University Graduation
Ceremony
Indiana University is a state university funded by
taxpayers and controlled by state law. It has eight
campuses throughout the state. This lawsuit concerns state-
sponsored prayers offered at graduation exercises on the
Bloomington campus of Indiana University. Each campus
has its own ceremony; not all have prayers. There are at
least four other state-supported universities in Indiana:
Purdue, Indiana State, Ball State, and Southern Indiana.
Among them, only Purdue also has graduation prayers.
Each March an official of Indiana University selects a
local religious leader to give an invocation and benediction
at Commencement. No one from outside the Judeo-
Christian tradition has ever been invited. Once the
religious leader has accepted, a university official sends
him or her a letter containing general instructions
requesting that the prayer be nonsectarian and unifying. In
1995, that cleric was Rev. Robert Sims.
On a Saturday in early May, Indiana University holds
its annual commencement exercises. In 1995, the year in
which the injunction was first sought, the exercises were
held in the football stadium. The ceremony was attended
by members of the Board of Trustees, approximately 150
university administrative officials and faculty,
approximately 5000 students, and 25,000-30,000 guests --
mostly the family and friends of the graduates. The guests
sat in the stands. Members of the university community
entered the stadium in an academic procession accompanied
by ceremonial music. The Board of Trustees, senior
university administrators, and a few specially invited guests
including Rev. Sims marched at the head of the procession
and took seats on a raised dais at one end of the stadium.
They were followed by the faculty and students who sat on
the stadium field facing the dias. The ceremony began with
the national anthem. Next, the President of the University
introduced Rev. Sims and asked everyone to stand and join
him in an invocation. Rev. Sims, wearing the university’s
academic gown, stepped to the lectern and led the crowd in
prayer.
Following the invocation was an address by the
commencement speaker, the conferral of honorary degrees,
the presentation of the graduating classes, student remarks,
the charge to the graduating classes and the conferral of
degrees. The awarding of doctorate degrees (including
law) is accompanied by an ancient academic ritual called
"hooding," in ‘which the faculty present academic hoods to
students by draping the hoods over the students’ heads so
they hang down the back of the academic gown. The hood
is a symbol that the student has completed the requirements
for the degree symbolized by the style of the hood.
Degrees are awarded by the faculty, so this ceremony could
not take place without the presence of faculty at graduation.
In the School of Law in which Petitioner Tanford is a
professor, there are not sufficient faculty volunteers to
perform the hooding ritual, so the Dean requests all faculty
to participate in this ceremony on a rotating basis.
Professor Tanford has never voluntarily, of his own
initiative, attended graduation. Rather, he has attended
only when asked to do so by the Dean, out of a sense of
obligation to his fellow faculty members, one of whom
would have to go in his place if he did not attend.
The ceremony concludes with the singing of the
University alma mater and a second prayer called a
benediction. The President of the University again asked
the audience to stand for a prayer, and Rev. Sims again
stepped to the lectern and led a prayer. The text of the
benediction was:
Let us pray. Gracious God we have
gathered as dreamers. People who believe
deep inside that things can be better. We
have been called into being by you to make
a difference. We like giving. Be with us as
we endeavor to reach out to those who feel
distance from the joy and the challenge of
truth. We pray that we might touch with our
learning those who feel that there is no hope,
no reason to believe in life and love, and the
possibility itself. Strengthen us for the
journeys of mind, of heart, of spirit, of
body, so that we might be right in truth for
one another, and for our world. We ask this
in the name of our common god. Amen.
The University defends its practice of sponsoring prayer
at graduation on the ground that it is a 150-year-old
tradition. However, there has been no single continuing
tradition with respect to prayer. Until a few years ago, the
tradition was to invite only Protestant Christian ministers to
lead the prayers. Only within the last ten years has the
university expanded the pool to include Jewish and Catholic
clergy, and requesting that the prayers be nonsectarian.
C. Proceedings Below
Professor Tanford and two other plaintiffs brought a
federal civil rights action seeking preliminary and
permenant injunctions against the university sponsoring
prayer at Commencement. He had been asked by his Dean
to attend the graduation ceremony that year. The other two
plaintiffs were students who have since graduated. The
District Court for the Southern District of Indiana denied
the preliminary injunction. Petitioner Urbanski is an
undergraduate student who expects to graduate in May
1999. He joined Professor Tanford as a plaintiff requesting
a permanent injunction against graduation prayer. The
district court denied the plaintiffs’ motion for summary
judgment, instead ruling that Indiana University's practice
of state-sponsored prayer at graduation did not offend the
Establishment Clause and entering summary judgment in
favor of the defendants. 932 F. Supp. 1139, 1146 (S.D.
Ind. 1996).
The Court of Appeals affirmed on January 16, 1997.
104 F.3d 982. It failed to adhere to the prevailing three-
part test for an Establishment Clause violation announced
in Lemon v. Kurtzman, 403 U.S. 602 (1971). Instead, it
inappropriately invoked Marsh v. Chambers, 463 U.S. 783
(1983), which created a narrow exception to the
Establishment Clause for legislative prayer. The court of
:
appeals then bolstered its decision by announcing a series
of Establishment Clause principles that run contrary to
prevailing First Amendment doctrine:
1. Prayer may be used to solemnize a public ceremony
2. Nonsectarian prayer is permitted
3. There is no entanglement when state officials may
select the cleric and instruct him concerning the content
of his prayers
4. Brief prayers are a de minimis violation of the
Establishment Clause and therefore are permissible
5. The Establishment Clause is violated only when the
litigants are coerced to attend or participate in a
religious activity
The court also made several clearly erroneous factual
statements:
1. The court noted erroneously that "plaintiffs could
simply attend the afternoon ceremonies, which do not
contain an invocation or benediction.” 104 F.3d at 986.
This finding was clearly erroneous as to both
petitioners.?_ Urbanski is an undergraduate, and the
afternoon ceremony was for law students only. Prof.
Tanford was not free to skip the morning ceremony
because he had been asked by the Dean to represent the
Law School at that ceremony.
"It applied only to plaintiffs MacDonald and Suess, who are not
parties to this Petition.
2. The court stated that "there was no coercion--real or
otherwise--to participate.” 104 F.3d 985. The
undisputed fact is that Prof. Tanford's attendance was
not voluntary, but was "part of [his] duties at the law
school.” 883 F. Supp. 1231, 1235. Also, participation
in college graduation is as consequential and important
to those students who have continued their education as
is participation in high school graduation for those
students who have achieved that level of education.
3. The court asserted that the practice of graduation
prayer at state university graduations is "widespread
throughout the nation.” 104 F.3d at 985. No evidence
to this effect was presented, nor did the District Court
make any such finding. See 932 F. Supp. at 1145
(discussion of university tradition makes no mention of
national tradition).
Rehearing was denied on February 25, 1997.
REASONS FOR GRANTING THE WRIT
I. THE SEVENTH CIRCUIT IGNORED
CONTROLLING SUPREME COURT
PRECEDENT WHEN IT DID NOT APPLY THE
LEMON TEST TO STATE SPONSORED
RELIGIOUS ACTIVITY.
The Seventh Circuit did not analyze the constitutionality
of state-sponsored graduation prayer by using the three-part
test of Lemon v. Kurtunan, 403 U.S. 602 (1971),°
implying that Lemon's application is limited to cases
involving financial aid to religion. 104 F.3d at 986
("Lemon [involved] financial aid to church-related
educational institutions, a far cry from _ the
non-denominational invocation and benediction at the
Bloomington commencement."). The opinion only briefly
alluded to a requirement that the university have a
"legitimate" secular purpose that did not have a primary
effect of "endorsing" religion.‘ 104 F.3d at 985. This
>The Lemon test is: “to satisfy the Establishment Clause a govern-
mental practice must (1) reflect a clearly secular purpose; (2) have a pri-
mary effect that neither advances nor inhibits religion; and (3) avoid ex-
cessive government entanglement with religion.” Lee v. Weisman, 505
U.S. 577, 584-85 (1992).
“This “legitimate” secular purpose standard is not as rigorous as
the state interest standard expressed in Lemon, which asks whether the
practice reflects a “clearly” secular purpose. The Seventh Circuit also
made no mention of Lemon's prohibition against a state policy that
“advances” religion. See Lee v. Weisman, 505 U.S. 577, 584-85 (1992).
failure to apply Lemon has been commented on in the legal
literature. ABA Journal, April 1997 at 37.
Th appeals court's refusal to apply Lemon obviously
conflicts with the Supreme Court's reliance on Lemon in
cases involving state sponsorship of religious activities.
E.g., County of Allegheny v. American Civil Liberties
Union Greater Pittsburgh Chapter, 492 U.S. 573, 592
(1989) (applying Lemon test to private groups seeking to
erect a creche and menorah on public property); Edwards
v. Aguillard, 482 U.S. 578, 583 (1987) (using Lemon test
to analyze Louisiana's "Balanced Treatment for
Creation-Science and Evolution-Science in Public School
Instruction Act"); Larkin v. Grendel's Den, Inc., 459 U.S.
116, 123-26 (1982) (using Lemon to review a statute
delegating to churches the power to prevent the issuance of
liquor licenses within a 500-foot radius). See also Lee v.
Weisman, 505 U.S. 577, 586 (1992) ("we do not accept the
invitation ... to reconsider our decision in Lemon v.
Kurtzman;" holding high school graduation prayer
unconstitutional).
Until recently, the Lemon test was used in every
Supreme Court Establishment Clause case. See Lee v.
Weisman, 505 U.S. 577, 603 n.4 (1992) (Blackmun, J.,
concurring) (Court has relied on Lemon in all 31
Establishment Clause cases since 1971 except Marsh v.
Chambers); County of Allegheny v. A.C.L.U. Greater
Pittsburgh Chapter, 492 U.S. 573, 592 (1989) (Lemon
"applied regularly in the Court's later Establishment Clause
cases"); Edwards v. Aguillard, 482 U.S. 578, 583 (1987)
("the Lemon test has been applied in all cases since its
adoption in 1971, except in Marsh v. Chambers"). Within
the last few years, however, there has emerged some
disagreement on the Supreme Court as to whether Lemon
should be applied in equal access cases. See Rosenberger
v. Univ. of Virginia, 115 S.Ct. 2510 (1995) (student
religious group's equal access to student activity funds);
Capitol Sq. Rev. and Adv, Bd. v. Pinette, 115 S.Ct. 2440
(1995) (private group's equal access to public forum to
erect a cross). However, no majority has explicitly
renounced Lemon even in this context, so it remains the law
of the land. Board of Education of Kiryas Joel Village
School District v. Grumet, 512 U.S. 687, 710 (1994)
(Blackmun, J., concurring) (Lemmon remains good law).
The Seventh Circuit appears to be anticipating that the
full Court will soon adopt Justice Scalia's call for the
abandonment of Lemon. E.g., Board of Education of
Kiryas Joel Village School District v. Grumet, 512 U.S.
687, 750-51 (1994) (Scalia, J. dissenting); Lee v. Weisman,
505 U.S. 577, 586 (1992) (Scalia, J., dissenting). To the
contrary, the majority of this Court continues to reiterate
that Lemon remains good law. See Lamb's Chapel v.
Center Moriches Union Free School District, 508 U.S.
384, 395 n.4 (1993) (equal access to school facilities;
majority of Court noted specifically that Lemon has not
been overruled and remains the law); Lee v. Weisman, 505
U.S. 577, 587 (1992) ("we do not accept the invitation of
petitioners ... to reconsider our decision in Lemon y.
Kurtzman").
On prior occasions when a circuit court has declined to
follow applicable Supreme Court decisions in the belief that
11
those decisions were outdated or would soon be overruled,
this Court has granted certiorari and criticized the
usurpation of Supreme Court prerogative. E.g., Rodriguez
De Quijas v. Shearson/American Express, 490 U.S. 477
(1989) ("if a precedent of this Court has direct application
in a case, yet appears to rest on reasons rejected in some
other line of decisions, the Court of Appeals should follow
the case which directly controls, leaving to this Court the
prerogative of overruling its own decisions"); Thurston
Motor Lines Inc. v. Jordan K. Rand, Ltd. , 460 U.S. 533,
535 (1983) ("only [the Supreme] Court may overrule one
of its precedents;" until that occurs, the precedent "is the
law.”).
Il. THE SEVENTH CIRCUIT'S FAILURE TO APPLY
THE LEMON TEST CONFLICTS WITH DECISIONS
REACHED IN OTHER’ CIRCUITS AND
ILLUSTRATES THE CONFUSION REIGNING IN
THE LOWER COURTS ABOUT THE STATUS OF
LEMON
There is a split among recent circuit court decisions on
the current status of the Lemon test. The Seventh Circuit
declined to apply Lemon in this case. The Third Circuit
has stated the opposite view -- that the Lemon test
"remains the law of the land, and we are obligated to
consider it until instructed otherwise by a majority of the
Supreme Court." A.C.L.U. of N.J. v. Black Horse Pike
Regional Bd. of Ed., 84 F.3d 1471, 1484 (3d Cir. 1996)
(en banc) (high school graduation prayer). The Eleventh
Circuit similarly held that “this Court must apply [the]
12
three-pronged analysis [of] Lemon v. Kurtzman." Jager v.
Douglas Co. School Dist., 862 F.2d 824, 828 (11th Cir.
1989) (invocations at high school football games). The
Fifth Circuit cannot decide what to do, first holding that
Establishment Clause "claims are guided by the three-part
test enunciated in Lemon v. Kurtzman," Doe v. Duncanville
Indep. School Dist., 994 F.2d 160, 163 (Sth Cir. 1993)
(prayers at basketball games), then "eschew[ing] the
tripartite Lemon analysis." /d. at 166 n.7, and finally
holding that there are "three tests” to analyze Establishment
Clause issues -- the Lemon test, a "coercion" test, and an
“endorsement” test. Ingebretsen v. Jackson Pub. School
Dist., 88 F.3d 274, 278-79 (Sth Cir. 1996).
Ill. THE SEVENTH CIRCUIT APPLIED THE
"TRADITION" EXCEPTION OF MARSH V.
CHAMBERS TO GRADUATION PRAYER, WHICH
CONTRAVENES SUPREME COURT PRECEDENT
AND CONFLICTS WITH OTHER CIRCUITS.
The Seventh Circuit held that public university
graduation prayers were constitutional by applying the
“tradition” exception of Marsh v. Chambers, 463 U.S. 783
(1983) (legislative prayer constitutional because of its
unique history). It held that "the University's practice of
having an invocation and benediction at its commencements
has prevailed for 155 years," serves to continue this
tradition, and therefore “is ‘simply a _ tolerable
acknowledgment of beliefs widely held among the people
of this country.'" 104 F.3d at 986 (citing Marsh).
The court of appeals’ position contravenes the Supreme
Court's prior decisions that Marsh is not to be extended
beyond the legislative setting nor to institutions that did not
exist at the time of the framing of the Constitution. Indeed,
Marsh itself holds that "[s]tanding alone, historical patterns
Cannot justify contemporary violations of constitutional
guarantees." 463 U.S. at 790. Only the unique history of
legislative prayer justifies an exception to the usual
Establishment Clause prohibition against state-sponsored
religious activity. Id.
Since Marsh, no Supreme Court majority has found
another institutional setting in which the "tradition"
exception can be invoked. See Lee v. Weisman, 505 U.S.
577, 596-97 (1992) (inherent differences between
graduation and a session of a state legislature "distinguish
this case from Marsh v. Chambers ... . The atmosphere
at the opening of a session of a state legislature where
adults are free to enter and leave with little comment and
for any number of reasons cannot compare with the ...
force of a formal exercise in a school graduation "); County
of Allegheny v. A.C.L.U. Greater Pittsburgh Chapter, 492
U.S. 573, 602 (1989) (not appropriate to apply the Marsh
"tradition" analysis to display of creche on public
property); Edwards v. Aguillard, 482 U.S. 578, 583 n.4
(1987) (The historical approach used in March “is not
useful in determining the proper roles of church and state
in public schools")
The Supreme Court has explained that Marsh was a
limited, unique excepoon that depended on a key fact: the
Constitutional C onvenngg, and the First Congress, which
¢ ieee
predated the Bill of Rights, were opened with prayers.
Thus, a special case is made for religious traditions that
pre-dated the Bill of Rights. However, "since free public
education was virtually nonexistent at the time the
Constitution was adopted,” it would be inappropriate to
apply Marsh to school prayer. Edwards v. Aguillard, 482
U.S. 578, 583, 583 n.4 (1987). State universities also did
not exist at the time the Constitution was adopted. The
first was the University of North Carolina, which did not
open its doors until 1795. Columbia Encyclopedia 1067
(Sth ed. 1993).
The Seventh Circuit's decision to apply the "tradition"
rationale of Marsh v. Chambers outside the context of
legislative prayer conflicts with decisions from five other
circuits, which have rejected the notion that historical
tradition justifies state-sponsored religious activity. See
Robinson v. City of Edmond, 68 F.3d 1226 (10th Cir.
1995) (city seal containing a Latin cross violated
Establishment Clause despite its tradition; Marsh not
applicable); A.C.L.U. of N.J. v. Black Horse Pike Regional
Bd. of Ed., 84 F.3d 1471, 1474 (3d Cir. 1996) (en banc)
(graduation prayer declared unconstitutional despite
“longstanding tradition;" Marsh not applicable); North
Carolina Civil Liberties Union Legal Foundation v.
Constangy, 947 F.2d 1145, 1149-50 (4th Cir. 1991) (judge
opening court with prayer was unconstitutional; Marsh not
applicable in the absence of proof that an official religious
event was a widespread practice in 1789); Jager v. Douglas
Co. School Dist., 862 F.2d 824, 828-29 (11th Cir. 1989)
(invocations at high school football games unconstitutional
15
despite being traditional "because invocations at school-
sponsored football games were nonexistent when the
Constitution was adopted"). Even Jones v. Clear Creek
Indep. School Dist, 977 F.2d 963, 966 (Sth Cir 1992), the
controversial case that approved student-initiated graduation
prayers, “applied Lemon's tripartite test rather than the
historical approach [of] Marsh v. Chambers."
IV. THE SEVENTH CIRCUIT CONTRAVENED
SUPREME COURT PRECEDENT AND THE
DECISIONS OF OTHER CIRCUITS WHEN IT
RULED THAT PRAYER IS ACCEPTABLE IF
"NONSECTARIAN"
The Seventh Circuit held that “the University's
inclusion of a brief non-sectarian invocation and
benediction [did] not have a primary effect of endorsing ...
religion." 104 F.3d at 986 (emphasis added). It appears
to have been significant to the court of appeals that the
prayers did not "endorse any particular religion.” Id. at
985 (emphasis added). The appeals court bolstered this
view by citing Supreme Court dictum that "University
students... should be able to appreciate that the University's
policy is one of neutrality of religion." Widmar v. Vincent,
454 U.S, 263, 274 n. 14 (1981).
The Supreme Court has consistently held to the
contrary, that the nonsectarian nature of prayer is
constitutionally irrelevant. The state cannot advance
religion generally any more than it could advance a
particular sect. Indeed, the graduation prayer declared
16
unconstitutional in Lee v. Weisman, 505 U.S. 577, 581-82,
89 (1992) was nonsectarian.
The classic statement of this principle comes from
Epperson v. Arkansas, 393 U.S. 97, 103-04 (1968):
Government in our democracy, state and
national, must be neutral in matters of religious
theory, doctrine and practice. It may not be
hostile to any religion or to the advocacy of
nonreligion; and it may not aid, foster, or
promote one religion or religious theory against
another or even against the militant opposite.
The Fisrt Amendment mandates governmental
neutrality between religion and religion, and
between religion and nonreligion.” (emphasis
added)
The Court has adhered to and reaffirmed this view in all of
its recent Establishment Clause cases. See Board of
Education of Kiryas Joel Village School District v. Grumet,
512 U.S. 687, 696 (1994) (proper respect for ... the
Establishment Clauses compels the State to pursue a course
of ‘neutrality’ toward religion,’ favoring neither one
religion over others nor religious adherents collectively
over nonadherents); County of Allegheny v. A.C.L.U.
Greater Pittsburgh Chapter, 492 U.S. 573, 605 (1989)
("we have held [the Establishment Clause] to mean no
official preference even for religion over nonreligion");
Edwards v. Aguillard, 482 U.S. 578, 585 (1987)
(Establishment Clause is violated when the State promotes
"religion in general" as opposed to nonreligion); School
Dist. of the City of Grand Rapids v. Ball, 473 U.S. 373,
17
382 (1985) (even a "praiseworthy secular purpose” cannot
validate government policies that have "the effect of
promoting ... religion generally; Establishment Clause
requires the state to maintain neutrality between religion
and nonreligion); Wallace v. Jaffree, 472 U.S. 38, 60
(1985) (striking down a nonsectarian moment of silence).
The Seventh Circuit's view that nonsectarianism maiters
conflicts with decisions from two other circuits. The Third
and Fifth Circuits have followed the Supreme Court's rule
that the nonsectarian nature of a state-sponsored prayer is
constitutionally irrelevant. See A.C.L.U. of N.J. v. Black
Horse Pike Regional Bd. of Ed., 84 F.3d 1471, 1487 (3d
Cir. 1996) (en banc) (nonsectarian graduation prayer
unconstitutional; impermissibly favors religions collectively
over nonreligion); Jngebretsen v. Jackson Public School
Dist., 88 F.3d 274, 279 (Sth Cir. 1996) (nonsectarian
prayer at school events and ceremonies violates
Establishment clause because it advances religion over
irreligion); Karen B. v. Treen, 653 F.2d 897, 901 (Sth Cir.
1981) (the fact that school prayers "do not promote some
sectarian religious practice is without constitutional
significance" because the First Amendment demands
"absolute governmental neutrality with respect to religion...
neither encouraging nor discouraging religious belief or
unbelief.").
18
BN
V. THE SEVENTH CIRCUIT CONTRAVENED LEE
V. WEISMAN BY HOLDING HELD THAT THERE IS
NO "ENTANGLEMENT" WHEN STATE OFFICIALS
SELECT A CLERIC AND INSTRUCT HIM
CONCERNING THE CONTENT OF THE PRAYER
Prior to Indiana University's 1995 commencement,
university officials selected a Catholic priest to give the
invocation and benediction, and instructed him in writing
to avoid sectarianism. The Seventh Circuit held that "[tJhe
instruction given to the cleric at the ceremony was merely
to ‘include an uplifting, general message’ and involved only
a minor contact between the university and local
clergy,"104 F.3d at 985; so “there is no excessive
entanglement of church and state” because of either the
“selection of a cleric or its instruction” to him." Id. at 986.
The issue of whether state officials may constitutionally
select a cleric and instruct him to keep the prayers
nonsectarian was decided contrary to the Seventh Circuit
position in Lee v. Weisman, 505 U.S. 577, 588-89 (1992).
In that case, school officials similarly selected the cleric
and “advised [the cleric] that his prayers should be
nonsectarian." The Court held that by this action, state
Officials “directed and controlled the content of the
prayers." Even though this was a “good-faith attempt by
the school to [remove] sectarianism ... from the graduation
ceremony,” it nevertheless entangled the school in a
religious enterprise, and violated the Establishment Clause.
The Seventh Circuit's view that selection and
instruction is not "excessive entanglement” also conflicts
19
with a Fifth Circuit case, Ingebretsen v. Jackson Public
School Dist., 88 F.3d 274, 279 (Sth Cir. 1996). In that
case, the court struck down a state law authorizing
nonsectarian prayer at school events and ceremonies
because public officials "determining who gets to say the
prayer" was excessive entanglement.
VI. THE SEVENTH CIRCUIT'S DECISION THAT
PRAYER MAY BE USED TO SOLEMNIZE A PUBLIC
CEREMONY IS INCONSISTENT WITH SUPREME
COURT PRECEDENT AND CONFLICTS WITH
OTHER CIRCUITS
The Seventh Circuit held that prayer may legitimately
be used at a state university ceremony to solemnize the
occasion. It held that the "invocation and benediction serve
legitimate secular purposes of solemnizing public
occasions," and that the First Amendment was not intended
to prohibit states [here a university] from sanctioning
ceremonial invocations of God." 104 F.3d at 986
The Supreme Court has previously rejected the
argument that public prayers at events such as graduation
are merely ceremonial or part of a constitutional "civic"
religion that may be used to solemnize a public event. In
Lee v. Weisman, the closest analogous case, the Court held
that high school graduation prayers could not be justified
on ceremonial grounds. It held that prayers are a "state-
sponsored and state-directed religious exercise,” and
criticized the "suggestion that government may establish an
official or civic religion as a means of avoiding the
20
establishment of a religion with more specific creeds ... as
a contradiction that cannot be accepted.” 505 U.S. 577,
586 (1992). See also Engle v. Vitale, 370 U.S. 421, 424-
25 (1962) (nonsectarian daily classroom prayer struck
down; the "invocation of God's blessings as prescribed in
the Regents’ prayer is a ... solemn avowal of divine faith
and supplication for the blessings of the Almighty[; t]he
nature of such a prayer has always been religious").
At least four other circuits have held that prayer is
inherently a religious activity and may not be used to
solemnize a public event. The Third Circuit rejected the
"solemnization" argument, stating "we are unable to
understand why graduation would be any less solemn"
without the prayer. A.C.L.U. of N.J. v. Black Horse Pike
Regional Bd. of Ed., 84 F.3d 1471, 1484-85 (3d Cir. 1996)
(en banc) (graduation prayer). The Eleventh Circuit
similarly held that since this solemnizing purpose could be
served by requiring wholly secular inspirational speeches,
"the state cannot employ a religious means to serve
otherwise legitimate secular interests." Jager v. Douglas
Co. School Dist., 862 F.2d 824, 829-30 (11th Cir. 1989).
See also A.C.L.U. of Georgia v. Rabun Co. Chamber of
Commerce, 698 F.2d 1098 (11th Cir. 1983) (Latin cross
alleged to serve secular purpose of "tourism;" state may not
employ religious means to reach a secular goal unless
secular means are wholly unavailing); Harris v. Joint
School Dist. No. 241, 41 F.3d 447 (9th Cir. 1994), vacated
115 S.Ct. 2604 (1995); dismissed as moot on remand 62
F.3d 1233 (9th Cir. 1995) (use of prayer to solemnize
21
public high school graduation ceremony was not valid
secular purpose and violated Establishment Clause).
The Fifth Circuit has most emphatically rejected the
notion that prayer can legitimately serve a secular
ceremonial purpose:
Prayer is perhaps the quintessential religious
practice for many of the world's faiths....
Even if the avowed objective ... is not itself
strictly religious, [the] unmistakable message
of the Supreme Court's teachings is that the
state cannot employ a religious means to
serve otherwise legitimate secular interests...
That [prayer] may contemplate some wholly
secular objective cannot alter the inherently
religious character of the exercise.
Karen B. v. Treen, 653 F.2d 897, 901 (Sth Cir. 1981).
Vil. THE SEVENTH CIRCUIT’S "DE MINIMIS"
EXCEPTION FOR BRIEF PRAYERS
CONTRAVENES SUPREME COURT PRECEDENT
AND THE DECISIONS OF OTHER CIRCUITS.
The Seventh Circuit invoked a "de minimis" exception,
holding that because the graduation prayers were brief and
did not “dominate” the ceremony, they were
constitutionally permissible even if they advanced religion.
The court stated: “Insofar as there is any advancement of
religion or governmental entanglement, it is de minimis at
best." 104 F.3d at 986. The appeals court approved the
district court's statement that "the challenged invocation
22
and benediction passed constitutional muster ... because
they ... did not dominate the baccalaureate ceremony." Id.
at 985.
The Seventh Circuit decision contravenes Supreme
Court precedents which have rejected the creation of a de
minimis exception in cases of state-sponsored religion.’ In
Lee v. Weisman, 505 U.S. 577, 594 (1992), the Court
rejected the argument that high school graduation prayers
should be permitted because they were brief:
It is, we concede, a brief exercise during which
the individual can concentrate on joining its
message, meditate on her own religion, or let
her mind wander. But the embarrassment and
the intrusion of the religious exercise cannot be
refuted by arguing that these prayers ... are of
a de minimis character. To do so would be an
affront to the rabbi who offered them and to all
those for whom the prayers were an essential
and profound recognition of divine authority.
$
There is a de minimis exception when the only alleged
Establish-ment Cluse violation is the expenditure of public
money that benefits religion, but that exception should
have no bearing in a case involving state sponsored prayer.
E.g., Lamb's Chapel v. Center Moriches Union Free
School District, 508 U.S. 384, 395 (1993) (providing
equal access to school facilities involved only de minimis
expenses connected to providing heat, electricity etc.).
23
And for the same reason, we think that the
intrusion is greater than the two minutes or so of
time consumed for prayers like these.
See also Wallace v. Jaffree, 472 U.S. 38, 60 (1985)
(striking down moments of silence because "[t]he
importrance of that principle does not permit us to treat this
as an inconsequential case involving nothing more than a
few words of symbolic speech").
Three other circuits have taken a position contrary to
the one articulated by the Seventh Circuit. The Fifth
Circuit ruled that brief nom: starian prayers at school
everits and ceremonies would violate the Establishment
Clause despite their brevity, holding that the "[l]oss of First
Amendment freedoms, even for minimal periods of time,
constitute[s] irreparable injury." Ingebretsen v. Jackson
Public School Dist., 88 F.3d 274, 280 (Sth Cir. 1996).
Similarly, the Eleventh Circuit rejected a de minimis
argument concerning invocations at high school football
games, holding that "[t]he Establishment Clause does not
focus on the amount of time an activity takes, but rather
examines the religious charaacter of the activity." Jager v.
Douglas Co. School Dist., 862 F.2d 824, 832 (11th Cir.
1989). The District of Columbia Circuit rejected a de
minimis argument used to defend the closing of a public
library on Easter. Bonham v. District of Col. Library
Admin., 989 F.2d 1242 (D.C. Cir. 1993).
24
VIII. THE SEVENTH CIRCUIT CONTRAVENED
DECISIONS OF THE SUPREME COURT AND
OTHER CIRCUITS BY HOLDING’ THAT
GRADUATION PRAYER IS EXEMPT FROM THE
ESTABLISHMENT CLAUSE BECAUSE IT iS
VOLUNTARY
The Seventh Circuit ruled that Indiana University
graduation prayers were constitutional because graduation
was "voluntary," many students in fact chose not to attend,
and "the mature stadium attendees were ... free to ignore
the cleric's remarks" 104 F.3d at 985-96.
This holding is not consistent with the "coercion"
analysis used in Lee v. Weisman, 505 U.S. 577, 594-95
(1992). In that case, the Court found a violation of the
Establishment Clause because students were coerced by
officials, family and peers to attend graduation at which
prayers were given. Nowhere did the Court indicate that
the absence of coercion meant there was no violation; only
that the absence of coercion would mean that the case was
to be analyzed according to the more usual Lemon test. See
also Engle v. Vitale, 370 U.S. 421, 430 (1962) (voluntary
classroom prayer unconstitutional; Establishment Clause
"does not depend upon any showing of direct governmental
compulsion and is violated by the enactment of laws which
establish an official [nonsectarian] religion whether those
laws operate directly to coerce non-observing individuals or
not”).
The voluntariness exception suggested by the Seventh
Circuit would be directly at odds with a line of cases
finding that religious displays violate the Establishment
25
Clause although no one is coerced to view them. E.g.,
County of Allegheny v. A.C.L.U. Greater Pittsburgh
Chapter, 492 U.S. 573, 592 (1989) (creche and menorah
on public property unconstitutional because they had the
"effect of ‘endorsing’ religion, a concern that has long had
a place in our Establishment Clause jurisprudence");
Robinson v. City of Edmond, 68 F.3d 1226 (10th Cir.
1995) (city seal containing Latin cross violated
Establishment Clause, notwithstanding contention that seal
merely symbolized city's unique history and heritage;
clearly no "coercion" issue); Washegesic v. Bloomingdale
Pub. Schools, 33 F.3d 679 (6th Cir. 1994) (portrait of
Jesus in school hallways visible to visitors to the school was
unconstitutional); A.C.L.U. of Georgia v. Rabun Co.
Chamber of Commerce, 698 F.2d 1098 (11th Cir. 1983)
(lighted cross in state park); American Jewish Congress v.
Beverly Hills, 90 F.3d 379 (9th Cir. 1996) (menorah in city
park); ACLU v. Schundler, 104 F3d 1435 (3rd Cir. 1997)
(creche at city hall).
Two circuits have had the opportunity to rule directly
on the voluntariness argument and rejected it; both found
that voluntariness does not save an otherwise
unconstitutional state sponsored religious activity. In Jager
v. Douglas Co. School Dist., 862 F.2d 824, 831-32 (11th
Cir. 1989), the court struck down invocations at high
school football games, rejecting arguments that attendance
was voluntary, many students elected not to attend, and the
audience was more mature than at other school functions.
It held that "When a religious invocation is given via a
sound system controlled by school principals and the
26
religious invocation occurs at a school-sponsored event at
a school-owned facility, the conclusion is inescapable that
the school endorses the religious invocation." The
"Establishment Clause focuses on the constitutionality of
the state action, not on the choices made by the
complaining individual.” In Doe v. Duncanville Indep.
School Dist., 994 F.2d 160, 163 (Sth Cir. 1993), the court
similarly held that prayers at voluntary basketball games
were unconstitutional.
Perhaps the most fundamental flaw of the court of
appeals’ decision is its requirement of subjective coercion
for an Establishment Clause violation. The decision creates
a dangerous precedent by essentially holding that a
governmental entity can solicit, sponsor, and endorse a
religious prayer to a captive audience it has assembled for
an important public event, so long as the particular litigants
challenging the prayers are not likely to be subjectively
converted by the prayers to a particular religious point of
view. This holding diminishes the substantial support such
officially-endorsed religious services provides to religion,
offends the important principle that government should
remain neutral not only towards particular religions, but to
religion in general, and incorrectly focuses the
Establishment Clause inquiry on the variable sensibilities of
plaintiffs rather than on the extent and nature of the
religious practices engaged in by governmental defendants.
27
CONCLUSION
Although no federal case has directly decided whether
a state university may include a prayer in its graduation
exercises, the law and doctrines to be applied in such a case
have been clearly set down in Supreme Court Establishment
Clause decisions. The weight of that authority suggests
that such state-university sponsorship of religion should be
found unconstitutional. Under the Court's Lemon test,
prayer has rarely been found to have a secular purpose
because it is so quintessentially a religious activity; state-
sponsored prayer at a public event advances religion
generally as opposed to non-religion; and the state's
selection of a cleric and instructions to him on the content
of his prayer entangle the state in religion. Such prayers
should not be justified on the ground that they are
voluntary, nonsectarian, traditional, or merely used to
solemnize a secular occasion.
The Seventh Circuit's decision allowing state-sponsored
prayer at graduation deviated from well established
doctrines, and created an anomalous decision at odds with
the other circuit courts. For these reasons, the petition for
a writ of certiorari should be granted, and the decision of the
Seventh Circuit reversed.
Respectfully submitted,
May 27, 1997 Richard A. Waples
WAPLES & HANGER
410 N. Audubon Road
Indianapolis, Indiana 46219
TEL: (317) 357-0903
FAX: (317) 353-9765
EMAIL: Richwaples@aol.com
Counsel of Record
29
APPENDIX
The Seventh Circuit’s Opinion in
Tanford v. Brand,
104 F.3d 982 (7th Cir. 1997) ............. a-1
The Seventh Circuit’s Order
of Feb. 25, 1997 (denying rehearing) ....... a-11
The District Court’s Entry in
Tanford v. Brand,
932 F. Supp. 1139 (S. D. Ind. 1996)
Granting Summary Judgment ............ a-12
The District Court’s Entry in
Tanford v. Brand,
883 F. Supp. 1231 (S.D. Ind. 1995)
Denying Preliminary Injunctive Relief ....... a-30
James A. TANFORD, Kimberly J. MacDonald, David Suess
and Joseph Anthony Urbanski, Plaintiffs-Appellants,
v.
Myles BRAND, Doctor, in his individual and official
capacities as President of Indiana University; and Kenneth
R.R. Gros Louis, Doctor, in his individual and official
capacities as Vice President and Chancellor of Indiana
University at Bloomington, Defendants-Appellees.
No. 96-3053.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 10, 1996.
Decided Jan. 16, 1997.
Rehearing and Suggestion for Rehearing En Banc
Denied Feb. 25, 1997.
CUMMINGS, Circuit Judge.
Three individuals brought this suit to enjoin the giving
of an invocation and benediction during the May 19, 1995
Commencement Ceremony on the Bloomington campus of
Indiana University. Plaintiff Tanford is an Indiana Law
School professor at Bloomington and plaintiffs MacDonald
and Suess were law students there. After their motion for
preliminary injunction concerning the May 6, 1995
Commencement Ceremony was denied, the complaint was
amended to add Joseph Anthony Urbanski as a plaintiff.
He was an undergraduate student majoring in computer
science on the Bloomington campus. The district court
denied summary judgment to plaintiffs and entered
judgment in favor of the defendants. 932 F.Supp. 1139,
1146 (S.D.Ind. 1996).
On May 5, 1995, the Bloomington commencement
activities began at the University President’s home. The
following day a university-wide Commencement Ceremony
took place in the University’s football stadium at 10:00
a.m. Special events followed for graduates of the various
schools and their families. A committee consisting of
faculty, staff and students was responsible for planning the
commencement activities.
Thirty thousand to 35,000 people attended the Saturday
morning stadium Commencement Ceremony. All
graduating students were invited to attend, but attendance
is voluntary and no penalty is imposed for non-attendance.
Of the 7,400 graduating students in the undergraduate and
graduate schools, approximately 5,000 attended.
Five thousand students and 150 University officials and
faculty members formed the academic procession to the
Commencement Ceremony. These persons proceeded to
chairs placed in the football field whereas the 25,000 to
30,000 visitors and guests were seated in the stadium’s
permanent seats. The ceremony consisted of the national
anthem, a nonsectarian invocation, an address by the
commencement speaker, the conferral of honorary
degrees, the presentation of the graduating classes, student
remarks, the charge to the graduating classes, the
conferral of degrees, the induction ceremony, the singing
of the University’s song, and a nonsectarian benediction.
Fifteen to fifty-five percent of the students graduating from
the law school attend the university- wide Commencement
Ceremony (Defendants’ Br. 3).
In 1840, the University commenced having a
nonsectarian invocation and benediction to open and close
the morning Commencement Ceremony. A religious
leader from the Bloomington area is invited to give the
invocation and benediction. The prayers usually refer to a
a-2
deity.' A different person is chosen each year and in
addition to the invocation that person is invited to give an
uplifting and unifying benediction. In 1995, Father Ralph
W. Sims of the St. Paul Catholic Center delivered the
invocation and benediction. His parish serves the
University’s Catholic students. In the previous year, the
invocation and benediction were given by Reverend
Barbara Carlson of the Unitarian Universalist Church.
Over the previous five years the invocation and
benediction were delivered by clergymen from the First
ian Church, the First United Methodist Church,
and the B’Nai B’Rith Hillel Foundation. Most of those
seated in the stadium do not stand for the invocation and
benediction.
University President Brand has explained that this
ceremony is not to sponsor any particular religious faith or
even to endorse religion but is meant to serve secular
objectives by emphasizing the solemnity and dignity of the
ceremony.
The four plaintiffs may be described as follows:
'The May 1995 benediction read as follows Let us pray.
Gracious God we have gathered as dreamers. People who believe
deep inside that things can be better. We have been called into
being by you to make a difference. We like giving. Be with us
as we endeavor to reach out to those who feel distance from the
joy and the challenge of truth. We pray that we might touch with
our learning those who feel that there is no hope, no reason to
believe in life and love, and the possibility itself. Strengthen us
for the journeys of mind, of heart, of spirit, of body, so that we
might be right in truth for one another, and for our world. We
ask this in the name of our common God. Amen.
a-3
1. Professor Tanford is 45 years old and has tenure at
the University. His undergraduate degree was obtained
from Princeton University and he received his J.D. and
L.L.M. degrees from Duke University. He has taught at
the law school since 1979. He attended only one
Commencement Ceremony since 1979 when he
commenced teaching law. He attended the 1987
Commencement Ceremony because he was asked to
"hood" students there. However, he absented himself
when the invocation began, returned for the hooding and
left before the benediction. He said that he did not think
all 7,000 people who stood during the invocation and
benediction believed in the religious message conveyed
and that the Commencement Ceremony would not affect
the religious beliefs of those in attendance. In 1988 or
1989, he wrote the student newspaper urging the faculty
and University community generally to boycott graduations
because of the “inappropriateness of having prayer."
2. Third-year law student MacDonald was expected to
graduate in May 1995. She had received her Bachelor of
Arts degree from Indiana University in May 1992. She
stated that she attended the May 1992 Commencement
Ceremony when she received her undergraduate degree
although she was uncomfortable in participating in a
service led by someone of a different faith. She stated
that her conscience would be offended if there were an
invocation and benediction in 1995. She also attended the
Commencement Ceremony in May 1994, being curious
about the invocation and benediction. She planned to
attend the 1995 Saturday afternoon law school Recognition
Ceremony, knowing it would not have an invocation or
benediction. She knew that she was not required to attend
the stadium Commencement Ceremony and was uncertain
a4
whether she would attend if there were an invocation and
benediction, even though her parents, family and friends
were interested in attending. She stated that she would be
bothered if her daughter saw a religious figure on the
stage with the University president or giving a prayer.
She did not disclose whether she attended the 1995
Commencement Ceremony after the preliminary injunction
was denied.
3. Plaintiff Suess was a first-year law student, expected
to graduate from the law school in May 1997. He is of
the Jewish faith and stated that he was offended by the
giving of a nonsectarian invocation and benediction
because it is a form of proselytizing although he said it
would not have any effect on his personal religious beliefs.
He had attended an invocation and benediction at his
undergraduate commencement ceremony at the University
of Chicago, although he did not participate in it. Suess
said he had been advised of the 1995 law school activities
by law school friends and quite possibly would attend the
morning Commencement Ceremony at the stadium. He
did not say whether he attended the ceremony after the
preliminary injunction was denied. He was planning to
attend the 1995 graduating Recognition Ceremony at the
law school although he did not know whether there would
be an invocation or benediction. As customary there was
none.
4. Urbanski was an undergraduate plaintiff and was
added after the preliminary injunction was denied. He
opposes graduation prayer because he believes there
should be a separation between church and state in a
public institution. Prayer makes him uncomfortable.
However, he agreed with his public high school policy
which permitted students to have a moment of silence or a
short prayer during commencement speeches. He
expected to attend the 1999 Commencement Ceremony
and would stay during the invocation and benediction
because it is inconvenient to leave during parts of the
ceremony. He would sit quietly until the prayer was over
but would not participate in it. His beliefs would not be
impacted by the ceremony.
Thomas Bolyard, Director of University Field
Services, said one of his responsibilities is to
accommodate persons who have special problems or
requests related to the Commencement Ceremony. He
said it would be an easy matter to accommodate plaintiff
Tanford and others who wished to be seated where they
could enter or exit the Ceremony at will. He said that it
was common for seated students or faculty members to get
up and move around during the ceremony. He stated that
some students and faculty members arrive late and leave
early and often leave their seats to get a drink or use the
restrooms.
In May 1995 the district court denied a preliminary
injunction. After filing an amended complaint and
answer, plaintiffs filed a motion for summary judgment
which was denied in a July 1996 twenty-page entry
reported at 932 F.Supp. 1139. We affirm.
In the opinion below, Chief Judge Barker pointed out
that under Lee v. Weisman, 505 U.S. 577, 586, 112 S.Ct.
2649, 2655, 120 L.Ed.2d 467 (involving a prayer
delivered by a clergyman at a middle school graduation),
the Constitution guarantees that government “may not
coerce anyone to support or participate in religion or its
exercise" and under Lemon v. Kurtzman, 403 U.S. 602,
612-613, 91 S.Ct. 2105, 2111-12, 29 L.Ed.2d 745 (1971),
the Constitution requires that state actions “have a secular
a-6
ore
purpose, that they neither advance nor inhibit religion and
* * * that they do not produce excessive government
entanglement with religion." 932 F.Supp. at 1142. The
district court concluded that plaintiffs were not entitled to
relief under either standard.
The district court found Lee to be inapplicable because
these plaintiffs are adults rather than younger students
requiring special solicitude. In this regard, the district
court observed that peer pressure is unlikely to dissuade
college graduates from protesting, and the opinion below
noted that thousands of graduates chose not to attend the
stadium morning ceremony and that non- adherents could
dissent without being noticed. The opinion also noted that
plaintiffs could simply attend the afternoon ceremonies,
which do not contain an invocation or benediction, and
that in any event the stadium ceremony presented no threat
of establishing religion. 939 F.Supp. at 1143-1145, 1147.
The district court also found that the challenged
invocation and benediction passed constitutional muster
under the Lemon test because they served only to
solemnize a public ceremony and continue a 155-year-old
University tradition and did not dominate the baccalaureate
ceremony, nor did they endorse any particular religion or
influence religious beliefs. The instruction given to the
cleric at the ceremony was merely to “include an uplifting,
general message" and involved only a minor contact
between the university and local Clergy. Id. at 1145-1146.
Discussion
All parties discuss Lee v. Weisman, 505 U.S. 577,
112 S.Ct. 2649. There Providence, Rhode Island,
officials permitted middle and high public school
principals to invite members of the clergy to give
invocations and benedictions at graduation ceremonies.
a-7
The middle school principal in question invited a rabbi to
deliver prayers at the graduation exercises of Deborah
Weisman, daughter of plaintiff. Rabbi Gutterman’s
invocation thanked God for protecting the rights of
minorities, liberty, political process, court system and
destiny. His benediction was couched in a similar,
nonsectarian vein. Student attendance and participation in
this “state-sponsored religious activity" were "in a fair and
real sense obligatory" (505 U.S. at 586, 112 S.Ct. at
2655). The Court added: "The government involvement
with religious activity in this case is pervasive, to the point
of creating a state-sponsored and state- directed religious
exercise in a public school" (505 U.S. at 587, 112 S.Ct. at
2655).
Justice Kennedy’s majority opinion in Lee explained:
"There are heightened concerns with protecting freedom of
conscience from subtle coercive pressure in the elementary
and secondary public schools" (S05 U.S. at 592, 112 S.Ct.
at 2658). Finally, in closing the Court stressed that the
objecting student was in effect compelled to attend and
participate in an explicit religious exercise she had no real
alternative to avoid (S05 U.S. at 598, 112 S.Ct. at 2661).
Unlike Lee, here there was no coercion--real or
otherwise--to participate. Many students chose not to
attend the stadium exercises. Others left during the
invocation, then returned and exited before the
benediction. Still others sat during both events, as did
most stadium attendees. At the afternoon ceremonies, no
prayer was involved. Finally, the mature stadium
attendees were voluntarily present and free to ignore the
cleric’s remarks. Most remained seated. Under these
facts, in which the special concerns underlying the
Supreme Court’s decision in Lee are absent, the district
court correctly determined that Lee does not require the
challenged practices to be struck down. Cf. Widmar v.
Vincent, 454 U.S. 263, 274 n. 14, 102 S.Ct. 269, 276 n.
14, 70 L.Ed.2d 440 (1981) ("University students * * * are
less impressionable than younger students and should be
able to appreciate that the University’s policy is one of
neutrality of religion.").
Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, is
plaintiffs’ other principal reliance. There Pennsylvania
and Rhode Island each gave financial aid to church-related
educational institutions, a far cry from the
non-denominational invocation and benediction at the
Bloomington commencement.
Here the University’s practice of having an invocation
and benediction at its commencements has prevailed for
155 years and is widespread throughout the nation. Rather
than being a violation of the Establishment Clause, it is
"simply a tolerable acknowledgment of beliefs widely held
among the people of this country." Marsh v. Chambers,
463 U.S. 783, 792, 103 S.Ct. 3330, 3336, 77 L.Ed.2d
1019 (1983). As we held in Sherman v. Community
Consolidated School District 21, 980 F.2d 437 (7th
Cir.1992), Illinois public schools may lead the Pledge of
Allegiance, including its reference to God, without
violating the Establishment Clause of the First
Amendment. Similarly here, the invocation and
benediction serve legitimate secular purposes of
solemnizing public occasions rather than approving
particular religious beliefs. Lynch v. Donnelly, 465 U.S.
668, 693, 104 S.Ct. 1355, 1369-70, 79 L.Ed.2d 604
(1984) (O’Connor, J., concurring). As the concurring
opinion in Sherman summarized, "the First Amendment
was not intended to prohibit states [here a university] from
a-9
2lsanctioning ceremonial invocations of God. Such * * *
action simply does not amount to an establishment of
religion” (980 F.2d at 448). Finally, as the district court
correctly determined, the University’s inclusion of a brief
non-sectarian invocation and benediction does not have a
primary effect of endorsing or disapproving religion, and
there is no excessive entanglement of church and state by
virtue of the University’s selection of a cleric or its
instruction to the cleric that his or her remarks should be
unifying and uplifting. Insofar as there is any
advancement of religion or governmental entanglement, it
is de minimis at best. See Metzl v. Leininger, 57 F.3d
618, 620 (7th Cir. 1995) (observing that "a law that
promotes religion may nevertheless be upheld * * *
because the effect in promoting religion is too attenuated
to worry about").
Judgment affirmed.
a-10
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
February 25, 1997
Before
Hon. WALTER J. CUMMINGS, Circuit Judge
Hon. HARLINGTON WOOD, JR., Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
JAMES A. TANFORD, et al., ) Appeal from the United
Plaintiffs-Appellants, ) States District Court
) for the Southern
) District of Indiana,
No. 96-3053 vs. ) Indianapolis Division.
)
MYLES BRAND, et al., ) No. IP 95 492 C B/S
Defendants-Appellees. )
) Sarah Evans Barker,
) Chief Judge.
ORDER
On consideration of the petition for rehearing with
suggestion for rehearing en banc filed by plaintiffs-
appellants on February 13, 1997, all of the judges on the
panel have voted to deny rehearing and no judge in active
service has requested a vote on the suggestion for
rehearing en banc.
IT IS ORDERED that the aforesaid petition for
rehearing be, and the same is hereby, DENIED.
a-11
James Alexander TANFORD, Kimberly J. MacDonald,
and David Suess, Plaintiffs,
v.
Dr. Myles BRAND, in his official capacities as President
of Indiana University, and Dr. Kenneth R.R. Gros Louis,
in his individual and official capacities as Vice President
and Chancellor of Indiana University at Bloomington,
Defendants.
No. IP 95-492 C B/S.
United States District Court,
S.D. Indiana,
Indianapolis Division.
July 15, 1996.
ENTRY
BARKER, Chief Judge.
Two graduations ago, plaintiffs filed the instant suit
seeking to enjoin Indiana University ("IU") from using an
invocation and benediction as part of its official
university-wide commencement ceremony. On May 4,
1995, just days before the 1995 ceremony was scheduled
to begin, we denied plaintiffs’ motion for a preliminary
injunction, finding that plaintiffs were unlikely to prevail
on the merits of their suit. Today, we reexamine those
merits in more detail and, though the record is
supplemented and the legal arguments refined, we confirm
that earlier finding.
I. FACTUAL BACKGROUND.
The facts in this case are largely undisputed. Plaintiffs
James Alexander Tanford, Kimberly MacDonald and
David Suess are, respectively, a tenured law professor and
“ =a 12
two Indiana University law students.' Joseph Urbanski, a
recently-added plaintiff, is an undergraduate student who
expects to graduate from IU in May of 1999. Defendant
Myles Brand is the President of the University and
defendant Kenneth R.R. Gros Louis is the Vice President
and Chancellor of the University’s Bloomington campus.
The University is a state institution.
By all accounts, IU’s graduation ceremonies are
sizeable gatherings. The 1995 ceremony, for example,
was held in the football stadium, approximately 5,000
students (out of a graduating class of 7,400) and 150
university officials participated, and between 30,000 to
35,000 people attended. Because of the numbers, students
are graduated en masse from their particular schools, and
only a few receive individual recognition. The parties
agree that between 15% and 55% of graduating law
students traditionally participate in this university-wide
ceremony.
For over 150 years, the University has invited local
clergy to give an invocation and a benediction as part of
this ceremony. These prayers are typically recited by
ordained ministers of mainstream religious denominations,
selected from religious leaders active in the university
community. Usually, if not always, the prayers include a
reference to a deity.? During the ceremony, the cleric is
‘Apparently, while this case was pending, MacDonald
graduated from the Law School and Suess completed his second
year there.
The benediction from the May 6, 1995 ceremony reads as
follows: Let us pray. Gracious God we have gathered as
dreamers. People who believe deep inside that things can be
a-13
introduced, and the audience is directed to stand during
the prayers. The clergyperson, wearing university regalia
(cap and gown) also sits on the dais with the University
President and other University officials throughout the
commencement ceremony.
As part of its graduation-day activities, the School of
Law also conducts a second, smaller Recognition
Ceremony for its graduates in the IU auditorium. At this
ceremony, the University recognizes each of its graduates
individually by calling their names and having them walk
across the stage to receive their law degrees. Based on
past experience, the law school approximates that between
75% to 90% of graduating law students participate, along
with family members and friends. Unlike the
university-wide ceremony, the law school ceremony does
not include an invocation or benediction. .
On April 18, 1995, plaintiffs filed the instant suit
seeking to permanently enjoin the use of an invocation and
benediction as part of the university-wide ceremony.
Their one-count complaint alleges that IU’s practice of
including a prayer violates the Establishment Clause of the
First Amendment to the United States Constitution. On
February 21, 1996, plaintiffs moved for summary
better. We have been called into being by you to make a
difference. We like giving. Be with us as we endeavor to reach
out to those who feel distance from the joy and the challenge of
truth. We pray that we might touch with our learning those who
feel that there is no hope, no reason to believe in life and love,
and the possibility itself. Strengthen us for the journeys of mind,
of heart, of spirit, of body, so that we might be right in truth for
one another, and for our world. We ask this in the name of our
common god. Amen. (Bolyard Supplemental Aff., Ex. A).
a-14
t Heese eens ——
judgment, which under Rule 56(c) of the Federal Rules of
Civil Procedure, is proper "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law."
Fed.R.Civ.Proc. 56(c). The burden rests squarely on the
party moving for summary judgment to show "that there is
an absence of evidence to support the nonmoving party’s
case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106
S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). The nonmoving
party responding to a properly made and supported
summary judgment motion still must set forth facts
showing that there is a genuine issue of material fact, that
a reasonable jury could return a verdict in its favor and
that the movant is not entitled to judgment as a matter of
law. See Wolf v. City of Fitchburg, 870 F.2d 1327, 1329
(7th Cir. 1989).
Il. ANALYSIS.
The Establishment Clause of the First Amendment
prohibits the establishment of religion in no uncertain
terms: “Congress shall make no law respecting an
establishment of religion ..." U.S. Const.Amend. I. From
this simple beginning, however, much confusion and many
lawsuits has ensued. As we emphasized in our entry
denying plaintiffs’ motion for a preliminary injunction, the
purpose of the establishment prohibition is “to prevent, as
far as possible, the intrusion of either [the church or the
State] into the precincts of the other." Lemon v.
Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 2112, 29
L.Ed.2d 745 (1971). Yet "total separation is not possible
in an absolute sense. Some relationship between
government and religious organizations is inevitable." Id.
a-15
at 614, 91 S.Ct. at 2112. Indeed, a "relentless and
all-pervasive attempt to exclude religion from every aspect
of public life could itself become inconsistent with the
Constitution." Lee v. Weisman, 505 U.S. 577, 597, 112
S.Ct. 2649, 2661, 120 L.Ed.2d 467 (1992).
Given the complexity of the task, it is perhaps not
surprising that no single criterion adequately defines the
fragile line that separates religious indoctrination from a
simple accommodation of religion. The test of longest
lineage, the so-called Lemon test,’ has fallen into
disfavor, yet "however frightening it might be to some,
has not been overruled." Lamb’s Chapel v. Center
Moriches Union Free School Dist., 508 U.S. 384, 394, n.
7, 113 S.Ct. 2141, 2148 n. 7, 124 L.Ed.2d 352 (1993);
see also Fleischfresser v. Directors of School Dist. 200,
15 F.3d 680, 686 (7th Cir.1994). The Supreme Court
case most analogous to the case at bar, Lee v. Weisman,
505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992),
adopts a different analysis, though four of the five Justices
in the majority either wrote or joined separate
concurrences advocating other constitutional standards.
Nevertheless, out of this complexity and confusion, two
constants appear: (1) “at a minimum, the Constitution
guarantees that government may not coerce anyone to
support or participate in religion or its exercise," Lee, at
586, 112 S.Ct. at 2655, and (2) at most, the Constitution
requires that state actions have a secular purpose, that they
neither advance nor inhibit religion and that they do not
produce excessive government entanglement with religion.
Lemon, 403 U.S. at 612-13, 91 S.Ct. at 2112. Because
‘Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29
L.Ed.2d 745 (1971).
a-16
plaintiffs have not established as a matter of law that they
are entitled to relief under either standard, their motion for
summary judgment is denied.
A. THE COERCION TEST EMPLOYED IN LEE
POSES NO OBSTACLE TO IU’S COMMENCEMENT
CEREMONY.
In Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649,
120 L.Ed.2d 467 (1992), the Supreme Court held that a
prayer delivered by a clergyman at a public middle school
ion ceremony violated the Establishment Clause.
In the majority opinion written by Justice Kennedy, the
Court emphasized that two factors controlled its decision:
(1) “state officials direct{ed] the performance of a formal
religious exercise;" and (2) "even for those students who
object[ed] to the religious exercise, their attendance and
participation in the state-sponsored religious activity [were]
in a fair and real sense obligatory...." Id., at 586, at
2655. As a consequence of these two factors--i.e., state
involvement coupled with coercion--"the State, in a school
setting, in effect required participation in a religious
exercise." Id. at 594, at 2659.
In this case, Lee’s state involvement prong is easily
Satisfied. It is undisputed that University officials pick the
date, time and locations for the various graduation
ceremonies. They control the content and order of events.
They decide whether the ceremony will include an
invocation and benediction, and they choose the religious
participant.* (Shoshana Watkins Dep., at pp. 7-8).
University officials even set parameters, albeit general
*“[TJhis is a choice attributable to the State, and from a
constitutional perspective it is as if a state statute decreed that the
prayers must occur.” Lee, at 586, 112 S.Ct. at 2655
a-17
ones, on the prayer’s content. (Watkins Dep., at p. 13).
Thus, because IU decided to have prayers at graduation,
chose the religious participant and influenced the content
of the prayer, there appears to be as much state
involvement in this case as occurred in Lee.
Satisfaction of Lee’s coercion prong, however, is a
closer question. To be sure, Lee did not hold that
invocations or benedictions always violate the Constitution
when offered as part of any public ceremony. Rather,
Justice Kennedy conducted a “delicate and fact-sensitive"
inquiry that identified four factors contributing to the
coercive nature of such prayers in that context. 505 U.S.
at 597, 112 S.Ct. at 2661.
First, the Court emphasized that high school students
perceive the involvement of their teachers, principals and
friends in a religious exercise as inducing a participation
they might otherwise reject. Though subtle and indirect,
the Court reasoned, this pressure can be as real as overt
coercion because adolescents are susceptible to pressure
from their peers, as well as from their superiors.
Second, the Court held that adolescents are likely to
view their acquiescence to the group ritual as an
expression of participation. True, “in our culture standing
or remaining silent can signify adherence to a view or
simple respect for the views of others." Id., at 592, at
2658. Yet, “given our social conventions, a reasonable
dissenter in this milieu could believe that the group
exercise signified her own participation or approval of it.”
Id., at 592, at 2658.
Third, because reasonable adolescent dissenters could
believe that the act of standing signifies participation, they
would be placed "in the dilemma of participating, with all
that implies, or protesting.” 505 U.S. at 592, 112 S.Ct. at
a-18
2658. Given the immaturity of the student participants,
however, the Court held that the force of peer pressure
made protest unlikely.
Finally, the Court emphasized that high school students
could not avoid the dilemma altogether by choosing to
bypass the ceremony. Even though not required,
attendance was not voluntary "in any real sense ... for
absence would require forfeiture of those intangible
benefits which have motivated the student through youth
and all her high school years." 505 U.S. at 594, 112
S.Ct. at 2659.
Significantly, each of these factors relied at least in
part on the "heightened concerns [associated] with
protecting freedom of conscience from subtle coercive
pressure in the elementary and secondary public schools."
505 U.S. at 592, 112 S.Ct. at 2658. To be sure, the
majority’s conception of what constitutes coercion was
broad; coercion does not derive from any formal
requirement conditioning the receipt of a diploma on
attendance at or participation in the ceremony. Yet, in a
practical sense, the coercion was held to be real; the
involvement of school authorities, the reality of peer
pressure, the importance of a high school graduation and
the likelihood that a reasonable dissenter would interpret
her silence as participation or approval (rather than as
simple respect for the views of others) all combined to
create the “reasonable perception" to an adolescent
dissenter "that she is being forced by the State to pray in a
manner her conscience” may not permit. Id., at 592, at
2658.
In this case, the concerns underlying the Court’s
decision in Lee are not present. Plaintiffs--unlike the
junior and high school students in Lee--are adults. Each
a-19
has earned or is in the process of earning undergraduate or
postgraduate degrees. Three of them--Tanford, Suess and
MacDonald--have even been trained as lawyers, a
discipline that demands the ability to think independently,
to analyze arguments skeptically and to disregard social
pressures, peer or otherwise. Indeed, it is difficult to
imagine a more rigorous discipline in these respects than
that imparted (or attempted to be imparted and implanted)
in a legal education.
That plaintiffs have added Joseph Urbanski, an
undergraduate, to the case does not change this
conclusion. University graduates are purposefully exposed
to a wider variety of ideas and beliefs than primary and
secondary school students. Of course, many of these
competing ideas, beliefs and value systems, “they find
distasteful or immoral or absurd or all of these." Lee, at
590, 112 S.Ct. at 2657. Yet, in many respects, the very
mission of higher education is to challenge basic values
instilled during childhood at a time when an individual
student has the intellectual maturity to choose between
competing beliefs. As the Supreme Court summarized
over twenty-five years ago: There is substance to the
mange mae Fenech eee 2 ome eam
less susceptible to religious indoctrination. Common
observation would seem to support that view.... The
skepticism of the college student is not an inconsiderable
barrier to any attempt or tendency to subvert the ...
limitations [prohibiting religious instruction].
Furthermore, by their very nature, college and
postgraduate courses tend to limit the opportunities for
sectarian influences by virtue of their own internal
disciplines. Tilton v. Richardson, 403 U.S. 672, 686, 91
S.Ct. 2091, 2099, 29 L.Ed.2d 790 (1971).°
In other words, the special solicitude for younger
students traditionally shown by federal courts® is not
required here. Unlike the adolescent plaintiffs in Lee, an
adult dissenter who remains quietly seated should not
"reasonab[ly] ... believe that the group exercise signifie{s]
her own participation or approval" of the prayer or its
*Courts and commentators alike have generally described
primary and secondary schools as playing a different role from
higher education: The central fact in the distinction between higher
and lower education is the role of value inculcation in the teaching
process. The public schools in the United States traditionally have
viewed instilling the young with societal values as a significant
part of the schools educational mission. Such a mission is directly
opposed to the vision of education that underlies the premises of
academic freedom in higher education. Goldstein, The Asserted
Constitutional Right of Public School Teachers to Determine What
They Teach, 124 U.Pa.L.R. 1293, 1342-43 (1976).
°See Edwards v. Aguillard, 482 U.S. 578, 583-84, 107 S.Ct.
2573, 2577-78, 96 L.Ed.2d 510 (1987) (noting that because
children in public schools are highly impressionable, schools must
be careful about sending any religious message); Grand Rapids
School Dist. v. Ball, 473 U.S. 373, 383, 105 S.Ct. 3216, 3222,
87 L.Ed.2d 267 (1985) ("the government’s activities in this area
(of religion in public schools] can have a magnified impact on
impressionable young minds"); Widmar v. Vincent, 454 U.S.
263, 274 n. 14, 102 S.Ct. 269, 276-77 n. 14, 70 L.Ed.2d 440
(1981) (university students are young adults and "are less
impressionable than younger students").
a-21
religious message, but rather her tolerance or respect for
the views of others.’ Nor is peer pressure likely to
dissuade a college graduate from choosing to protest.
Indeed, Professor Tanford, in the finest tradition of higher
education, left the 1987 ceremony before the benediction,
in part “hoping that people would ask me later why I had
done it and that I then could ... engage them in a dialogue
to explain my reasons." (Tanford Dep., pp. 47-48).®
In addition to the relative maturity of the participants
and the unique role of the University, the coercive nature
of IU’s commencement is also lessened by the atmosphere
of the ceremony itself. In contrast to a high school
ceremony, which is highly controlled and "analogous to
the classroom setting, where [the Court has] said the risk
of compulsion is especially high," Lee, 505 U.S. at 595,
112 S.Ct. at 2660, IU’s graduation is much less regulated.
The 1995 ceremony, for example, encompassed 5,000
graduates and over 30,000 spectators in a football stadium.
The ceremony, both by its size and program content, was
7Professor Tanford essentially admits as much when he states
that he does not “believe for a minute that all 7,000 people [who
stood for the prayer] believed in the religious message" and that
he was “certain there are a lot of people who did not intend by
remaining to express agreement with the message.” (Tanford
Dep., pp. 39, 41).
Similarly, MacDonald remained seated and took notes during
the invocation and benediction at the 1994 ceremony.
(MacDonald Dep., pp. 16- 17). Like Tanford, Suess has also
absented himself during public prayers in the past. (Suess Dep.,
pp. 34-35).
impersonal; students were graduated en masse from their
particular schools and only a few received individual
recognition. Thousands of graduates chose not to attend.
Undoubtedly, in a large, outdoor stadium, filled with
thousands of graduates, a nonadherent could dissent
without being noticed and -without fear of being identified
as a nonconformist. And, because people from all manner
of backgrounds, races and religious creeds (including no
religious creed) attend, individual acts of standing or
remaining silent cannot be interpreted as expressions of a
position on the theological merit of certain values, or of
religious beliefs in general.
Moreover, because IU’s commencement exercises
actually involve multiple graduation ceremonies, plaintiffs
have meaningful alternatives. Indeed, they can attend the
smaller, more intimate law school ceremony, which does
not contain an invocation or benediction, but does allow
for "individual and personalized recognition" of each
students’ achievement in earning a degree. (Leonard
Fromm Dep., p. 18). Perhaps for this reason, 75% to
90% of law students attend this smaller ceremony,
compared to the 15% to 55% who attend the
university-wide commencement.
In sum, the "symbolism of a union between church and
State is most likely to influence children of tender years,
whose experience is limited and whose beliefs
consequently are the function of environment as much as
free and voluntary choice." Grand Rapids School Dist. v.
Ball, 473 U.S. 373, 390, 105 S.Ct. 3216, 3226, 87
L.Ed.2d 267 (1985). Since these concerns are not present
at a university commencement involving thousands of
graduates, multiple ceremonies, advanced degrees and
well-defined personal and religious identities, Lee v.
Weisman does not require that we grant plaintiffs’ motion
for summary judgment. Accord Chaudhuri v. State of
Tennessee, 886 F.Supp. 1374, 1386 (M.D. Tenn.1995)
(the "Court finds that permitting a prayer to be offered at
a public university’s graduation ceremony ... presents no
real threat of establishing religion").
B. LEMON’S THREE-PART TEST DOES NOT
INVALIDATE IU’S USE OF PRAYER.
While Lee establishes the Establishment Clause’s
minimum protection, the Lemon test arguably demarcates
the Constitution’s outer limits. Under this test, a state
action (1) must have a secular purpose, (2) must neither
advance nor inhibit religion, and (3) must not produce
excessive government entanglement with religion in order
to pass constitutional muster. Lemon v. Kurtzman, 403
U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745
(1971).
(1). Secular Purpose
The first Lemon factor asks if the challenged action
has a secular purpose. Significantly, Lemon does not
mandate that the government activity have an exclusively
secular purpose; only one secular purpose need exist.
Lynch v. Donnelly, 465 U.S. 668, 681 n. 6, 104 S.Ct.
1355, 1363 n. 6, 79 L.Ed.2d 604 (1984). However, if an
obscure secular purpose is wholly dominated by a religious
one, then the purpose prong is not satisfied. Id. at
690-91, 104 S.Ct. at 1368 (O’Connor, J., concurring).
In this case, we cannot say as a matter of law that the
preeminent purpose of IU’s invocation and benediction is
religious. At a minimum, the prayer continues a
155-year-old tradition at the University, solemnizes a
public occasion, “express[es] confidence in the future and
encourag[es] the recognition of what is worthy of
appreciation in society." Id. at 693, 104 S.Ct. at 1369
(O’Connor, J., concurring).? Moreover, the purpose
prong requires that the prayer be examined in the context
of the entire ceremony. Id. at 679, 104 S.Ct. at 1362.
Here, because the invocation and benediction comprise
only a few minutes of an otherwise wholly secular
ceremony, they simply do not have the same religious
force as prayers offered during a worship service, or even
at a baccalaureate ceremony. Thus, because a brief
invocation/benediction serves the legitimate secular
purpose of solemnizing a public ceremony and of
continuing a 155-year old university tradition, plaintiffs
have not satisfied the first prong of Lemon as a matter of
law.
(2). Primary Effect to Advance Religion
Under the second prong of Lemon, the key inquiry is
whether the university’s decision to have an invocation and
benediction sends primarily a message of endorsement or
disapproval of religion. See Corporation of Presiding
Bishop of the Church of Jesus Christ of Latter-day Saints
v. Amos, 483 U.S. 327, 337, 107 S.Ct. 2862, 2869, 97
L.Ed.2d 273 (1987); County of Allegheny v. ACLU, 492
U.S. 573, 592-93, 109 S.Ct. 3086, 3100-01, 106 L.Ed.2d
*See also Jones v. Clear Creek Indep. School Dist., 977 F.2d
963, 967 (Sth Cir.1992), cert. denied, 508 U.S. 967, 113 S.Ct.
2950, 124 L.Ed.2d 697 (1993) (finding secular purpose in high
school graduation prayers); County of Allegheny v. ACLU, 492
U.S. 573, 595, n. 46, 109 S.Ct. 3086, 3102, n. 46 106 L.Ed.2d
472 (1989); but see Harris v. Joint School Dist. No. 241, 41
F.3d 447, 458 (9th Cir.1994) (finding no secular purpose in high
school graduation prayers); ACLU v. Black Horse Pike Regional
Bd. of Educ., 84 F.3d 1471, 1484-86 (3d Cir. 1996).
a-25
472 (1989); Wallace v. Jaffree, 472 U.S. at 75, 105 S.Ct.
at 2499. The "test is whether the symbolic union of
church and state effected by the challenged governmental
action is sufficiently likely to be perceived by adherents of
the controlling denominations as an endorsement, and by
the non- adherents as a disapproval, of their individual
religious choices." School Dist. of City of Grand Rapids
v. Ball, 473 U.S. 373, 390, 105 S.Ct. 3216, 3226, 87
L.Ed.2d 267 (1985); see generally Lynch, 465 U.S. at
681-83, 104 S.Ct. at 1363-64 (city’s inclusion of a creche
in Christmas. display did not have primary effect of
endorsing religion).
In this case, given the non-sectarian and brief nature of
the prayers, as well as the sophistication of the audience
and the university setting, the benefit to one faith over
another (or to religion in general) is at most indirect and
incidental. Indeed, the very mission of the University is
to expose developing young adults to a universe of new
ideas and beliefs, most of which the University claims no
special allegiance to. Thus, a 30-second prayer delivered
as part of larger secular ceremony "would no more
commit the University ... to religious goals than it is now
committed to the goals of the Students for a Democratic
Society [or] the Young Socialist Alliance." Widmar, 454
U.S. at 274, 102 S.Ct. at 276 (internal quotation marks
omitted). In his deposition, Professor Tanford admits as
much when he states that he does not view the non-
sectarian prayer as endorsing any particular religion or
influencing people’s religious beliefs. See Tanford Depo.
at 42-43. Thus, the court finds as a matter of law that
plaintiffs have not satisfied Lemon’s second prong.
(3). Excessive Entanglement
a-26
Lemon’s third prong asks whether the Challenged
action creates an excessive entanglement between church
and state. Supreme Court cases relying on the excessive
entanglement prong to invalidate state actions have largely
involved an enduring association between the government
and religious institutions. Often the cases entail state aid to
religious or parochial institutions for particular secular
Purposes. See, e.g., Lemon, 403 U.S. 602, 91 S.Ct.
2105, 29 L.Ed.2d 745 (state law that paid a portion of
Private school teachers’ salaries for teaching secular
subjects was excessive entanglement); Ball, 473 U.S.
373, 390, 105 S.Ct. 3216, 3226, 87 L.Ed.2d 267 (sending
government teachers to private schools to teach secular
Classes constituted excessive entanglement). Other cases
have involved government delegations of power to
religious bodies. See, ¢.g., Larkin v. Grendel’s Den, 456
U.S. 913, 102 S.Ct. 1765, 72 L.Ed.2d 171 (1982) (statute
giving church-affiliated schools power to veto nearby
liquor licenses struck down as excessive entanglement).
In this case, the University’s alleged monitoring of the
graduation prayers consists of the selection of a cleric and
a reminder to him or her to include an uplifting, general
message. Such interaction does not require that "a
particular religion ... endure the ongoing presence of state
personnel whose primary purpose is to monitor” prayer
Contents in "an attempt to guard against the infiltration of
a-27
Clause cases, the court finds that plaintiffs have failed to
satisfy any of Lemon’s three prongs.
Ill. CONCLUSION.
In sum, plaintiffs have not demonstrated that they are
entitled to summary judgment under either the coercion
test set forth in Lee or the traditional Lemon test. Indeed,
like the legislative prayers approved in Marsh, or the
“government declaration of Thanksgiving as a public
holiday, [or the] printing of "In God We Trust’ on coins,
[or] opening court sessions with "God save the United
States and this honorable court,’ Lynch, 465 U.S. at 693,
104 S.Ct. at 1369, a short ecumenical prayer at a
university graduation amounts to nothing more than “a
tolerable acknowledgement of beliefs widely held among
the people of this county." Marsh, 463 U.S. at 792, 103
S.Ct. at 3336. Plaintiffs’ motion for summary judgment
must therefore be denied.
Moreover, though defendants have noi yet moved for
summary judgment, the Court concludes that judgment
should be immediately entered in their favor. The facts
relied upon by the Court, including the age of the
plaintiffs, the atmosphere and overwhelmingly secular
nature of the ceremony, the briefness of the prayer, the
unique role of the University and the availability of
alternative ceremonies, are undisputed. Defendants
suggest that factual controversies relating to the feelings of
awkwardness and distaste plaintiffs profess to have
experienced during the ceremony preclude summary
judgment in their favor. Such allegations of fact are
uniquely unsuited to objective verification and, therefore,
could not be the sole basis for requiring a trial. Whatever
the intensity or sincerity of those feelings, however, they
do not change the Court’s legal analysis or conclusions.
a-28
Finally, this ruling on summary judgment is consistent
with its conclusions and analysis in the order denying the
motion for preliminary injunction. That order, therefore,
is incorporated in this entry and, for all these reasons set
forth above, plaintiffs’ motion for summary judgment is
DENIED.
It is so ORDERED.
James Alexander TANFORD, Kimberly J. MacDonald,
and David Suess, Plaintiffs,
v.
Dr. Myles BRAND, in his individual and official
capacities as President of Indiana University, and Dr.
Kenneth R.R. Gros Louis, in his official capacities as Vice
President and Chancellor of Indiana University at
Bloomington,
Defendants.
No. IP 95-492 C B/S.
United States District Court,
S.D. Indiana,
Indianapolis Division.
May 4, 1995.
BARKER, Chief Judge.
Today we must answer a question explicitly left open
by the Supreme Court in Lee v. Weisman, 505 U.S. 577,
112 S.Ct. 2649, 120 L.Ed.2d 467 (1992)--namely,
whether a member of the clergy may offer prayers as part
of a public university’s graduation ceremony consistent
with the Establishment Clause of the United States
Constitution. Because Plaintiffs failed to demonstrate a
likelihood of their succeeding on the merits, we deny their
motion for preliminary injunctive relief.
I. FACTUAL BACKGROUND
Given the accelerated pace of-this suit, the underlying
facts are still somewhat under-developed. However, the
following facts are largely undisputed. Plaintiffs James
Alexander Tanford, Kimberly MacDonald and David
Suess are, respectively, a tenured law professor and two
a-30
For over 150 years, the University has invited clergy
‘Plaintiff MacDonald is a graduating law student while
plaintiff Suess is completing his first year of law school.
a-31
As part of the commencement activities, the School of
Law conducts a second, smaller ceremony only for its
graduates later in the day in the IU auditorium. At this
ceremony, the University recognizes each of its graduates
individually by calling their names and having them walk
across the stage to receive their law degrees. Based on
past experience, the law school expects 75% to 90% of
graduating law students to participate. The law school
ceremony does not include an invocation or benediction.
As part of their duties at the law school, professors are
requested’ from time to time and on a rotating basis to
attend the university-wide ceremony in order to assist in
the presentation of academic hoods to law school
graduates. Although he has attended the ceremony only
once during his fifteen years as a member of the IU
faculty, Professor Tanford has agreed to attend this year’s
upcoming commencement. Neither at the university-wide
commencement, nor the more intimate law school
ceremony, are the two student plaintiffs subject to formal
requirements to attend.
On April 18, 1995, Plaintiffs filed the instant suit
seeking a preliminary injunction to enjoin the use of an
invocation and benediction as part of IU’s university-wide
graduation ceremony. Their one count complaint alleges
that IU’s practice of including an invocation and
benediction as part of its official graduation exercises
violates the Establishment Clause of the First Amendment
to the United States Constitution.
?The parties stipulate that no explicit requirement is imposed
on faculty to attend the commencement ceremony and no sanction
flows from a failure to volunteer for such service
a-32
Il. STANDING
Article III of the Constitution limits the power of this
court to resolving cases and controversies. The doctrine
of standing “is an essential and unchanging part of the
Case-or-controversy requirement of Article II." Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct.
2130, 2136, 119 L.Ed.2d 351 (1992). At a minimum,
standing requires that the plaintiff suffer an “injury in
defendant and the injury is likely to be redressed by a
favorable decision. Valley Forge Christian College v.
Americans United for Separation of Church and State,
Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d
700 (1982).
v. Students Challenging Regulatory Agency Procedures
(SCRAP), 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 2417
n. 14, 37 L.Ed.2d 254 (1973) quoted in Doe, 41 F.3d at
1159.
In light of this broad language, we fear in this context
that the law of standing has taken on an almost
metaphysical quality. One wonders how anyone can
reliably and properly determine that the meaning and
significance of standing if it is satisfied by an “identifiable
trifle." Yet even under such an expansive interpretation,
standing poses a significant obstacle to Plaintiffs’ case.
Plaintiff David Suess, for example, is a twenty-eight
year old student currently completing his first year of law
school. He is not scheduled to graduate until May of
1997. He has been invited to commencement activities by
some graduating friends and féels that, should he attend,
the invocation and benediction will make him feel
uncomfortable. We emphasize the uncertainty of his
attendance because Mr. Suess has not yet decided whether
he will attend the university-wide commencement. When
asked in a deposition whether he would attend the
university-wide commencement (the subject of this lawsuit)
or the smaller law school ceremony later that day (which
does not include an invocation or benediction), he replied:
"Definitely the law school ceremony and quite possibly the
commencement." (Suess Dep. at p. 32) (emplasis added).
But it depends “partially on how things go with this and
schedule conflicts." (Id. at p. 32).
From this admission, it is clear that Mr. Suess has no
stake in this litigation. If he decides to stay home and
miss the campus-wide ceremony, then he will simply have
no “direct and unwelcome exposure to a religious
message." Doe, 41 F.3d at 1159. If he decides to attend,
he is no more than an observer with nothing at stake in the
ceremony besides the “psychological consequence
presumably produced by observation of conduct with
which one disagrees." Valley Forge, 454 U.S. at 485,
a-34
102 S.Ct. at 765. Either way, Suess’s alleged injury is
¢ven more theoretical than the interests found insufficient
to confer standing in Freedom From Religion Foundation,
Inc. v. Zielke, 845 F.2d 1463 (7th Cir.1988). In that
case, the Seventh Circuit considered whether the plaintiffs
had standing to challenge the constitutionality of a
monument of the Ten Commandments in a city park.
Because the plaintiffs did not alter their behavior as a
result of the monument and failed to demonstrate that they
were exposed to the monument during their normal
routines or in the course of their usual driving or walking
routes, the court affirmed the district court’s dismissal for
lack of standing. Id. at 1468-69. Thus, because Mr.
Suess cannot demonstrate that he will be exposed to an
unwelcome religious exercise, he lacks standing and is
Plaintiff James Tanford’s stake, by contrast, falls
squarely in the category of a “trifle,” but apparently that
suffices under current constitutional interpretations. Asa
tenured professor at the law school, Tanford states he is
"obligated" to attend the university-wide commencement
exercises, or at least the "hooding" portions of the
ceremony, Once every few years. He admits, however,
that this obligation is not externally imposed in any way.
Indeed, when asked by the Dean to "volunteer" for this
duty in the past, Tanford has successfully avoided it: he
has only attended the ceremony once in his fifteen years as
a member of the law school faculty, and there has never
been any threat of discipline as a result of not
participating. Nevertheless, Professor Tanford
unequivocally states that he plans to attend this year.
Moreover, because he is a faculty member, his connection
to the ceremony and his stake in its constitutionality are
a-35
more direct than the ephemeral injustice that Plaintiffs
contend will allegedly be suffered by Mr. Suess, a mere
observer. Thus, although his interest constitutes only a
trifle, "an identifiable trifle is enough for standing."
SCRAP, 412 U.S. at 689 n. 14, 93 S.Ct. at 2417 n. 14.
We therefore permit him to remain in the suit “to fight out
a question of principle." Id.
The basis for MacDonald’s standing, by contrast, is on
much firmer ground. Because she is currently completing
her third and final year of law school, she will be
graduated at this year’s ceremony. Moreover, she has
indicated her intention to attend. (MacDonald dep. at p.
43). Thus, MacDonald has demonstrated both a concrete
stake in the constitutionality of the ceremony and also a
strong likelihood of being directly exposed to an
unwelcome religious exercise. Accordingly, we find that
her interest in the litigation is sufficient to confer standing.
We emphasize, however, that MacDonald may not
bootstrap her interest in the litigation from injuries that
will allegedly be suffered by her two-year old daughter.
MacDonald has sued strictly on her own behalf and not
that of her daughter.° :
Given the identities of the Plaintiffs, we have our doubts
about whether this suit represents anything more than a clinical
classroom exercise contrived by a law professor and two of his
students. We therefore remind these parties, as well as all future
litigants, that the machinery of the federal courts is not to be
engaged merely to conduct "ingenious academic exercise[s} in the
conceivable." Lujan, 504 U.S. at 566, 112 S.Ct. at 2139.
However, as set forth above, in this case both Professor Tanford
and Plaintiff Kimberly MacDonald, who will be graduated at the
challenged ceremony, have shown a likelihood of establishing a
a-36
ai EA ey RP eT) ee ee ee ee ae
III. PRELIMINARY INJUNCTION STANDARD
(3) whether there will be irreparable harm if an injunction
does not issue; (4) whether the balance of harms to the
movant if an injunction is denied and to the opponent if
the injunction is granted favors the movant; and (5)
whether an injunction is adverse to the public interest.
JAK Productions, Inc. v. Wiza, 986 F.2d 1080, 1084 (7th
Cir.1993); Grossbaum v. Indianapolis-Marion County
Building Authority, 870 F.Supp. 1450, 1453
(S.D.Ind. 1994). The Court, "sitting as would a chancellor
in equity, then weighs" these factors in deciding whether
to grant the injunction. Abbott Laboratories y. Mead
Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992).
Although distinct in theory, these five elements
essentially reduce to a discussion of the Plaintiffs’
likelihood of success on the merits in this case. Indeed,
irreparable harm is presumed to flow from violation of a
constitutional right: "[T]he loss of First Amendment
freedoms for even minimal periods of time,
unquestionably constitutes irreparable injury." Elrod v.
Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49
L.Ed.2d 547 (1976); accord Shondel v. McDermott, 775
F.2d 859, 866-87 (7th Cir.1985). A conclusion that an
injury is irreparable in turn establishes that there is no
adequate remedy at law. Fleet Wholesale Supply v.
Remington Arms Co., 846 F.2d 1095, 1098 (7th
Cir.1988) ("To say that the injury is irreparable means
perceptible, albeit fleeting, harm
a-37
that the methods of repair (remedies at law) are
inadequate”) (emphasis in original). Because
governmental compliance with the Constitution always
serves the common good, determination of the public
interest also turns on the merits. Grossbaum, 870 F.Supp.
~ at 1453. Finally, the balance of harms here does not tip
decidedly on either side; the harms from an erroneous
ruling flow equally in either direction.‘ Thus, our
decision on the preliminary injunction is based on which
side appears more likely to succeed on the merits.
IV. LIKELIHOOD OF SUCCESS ON THE MERITS
Concerning religion, the First Amendment both |
promises its free exercise and prohibits its establishment:
"Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof." U.S.
Const.Amend. I. In crafting this provision of our
Constitution, the Founding Fathers recognized, as must
this Court, the tension between these rights. To deal with
that tension they crafted their great compromise: free —
exercise, but no coercion.
The Supreme Court has explained that the purpose of
the establishment prohibition is "to prevent, as far as
possible, the intrusion of either [the church or the state]
into the precincts of the other." Lemon v. Kurtzman, 403
U.S. 602, 614, 91 S.Ct. 2105, 2112, 29 L.Ed.2d 745
“Indeed, as Defendants concede, in weighing the relative
harms, the Court must focus "on the risk of an erroneous
decision." (Brief in Opposition, p. 10); see also Abbott
Laboratories v. Mead Johnson & Co., 971 F.2d 6, 11-13 (7th
Cir.1992). Whether our decision is erroneous or not is again tied
up with—though not entirely dependent upon--our examination of
the merits.
a-38
(1971). Indeed, the federal courts have often used
Thomas Jefferson’s metaphor of a wall of separation
between church and state to emphasize "that religious
beliefs and religious expression are too precious to be
either proscribed or prescribed by the State." Lee v.
Weisman, 505 U.S. 577, ----, 112 S.Ct. 2649, 2656, 120
L.Ed.2d 467 (1992).
At the same time, however, we recognize that "total
separation is not possible in an absolute sense. Some
relationship between government and religious
organizations is inevitable." Lemon, 403 U.S. at 614, 91
S.Ct. at 2112. Indeed, as noted earlier, the Constitution
religion. See Lamb’s Chapel v. Center Moriches School
Dist., 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352
(1993); Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct.
1355, 79 L.Ed.2d 604 (1984). Over forty years ago the
Supreme Court held that: When the state encourages
religious instruction or cooperation with religious
authorities by adjusting the schedule of public events to
sectarian needs, it follows the best of our traditions. For
it then respects the religious nature of our people and
accommodates the public service to their spiritual needs.
To hold that it may not would be to find in the
Constitution a requirement that the government show a
callous indifference to religious groups. Zorach v.
Clauson, 343 U.S. 306, 313-14, 72 S.Ct. 679, 684, 96
L.Ed. 954 (1952). Thus, in every Establishment Clause
case, the Court "must reconcile the inescapable tension
between the objective of preventing unnecessary intrusion
of either the church or the state upon the other, and the
reality that, as the Court has so often noted, total
a-39
separation of the two is not possible." Lynch, 465 U.S. at
672, 104 S.Ct. at 1359.
A. Lee v. Weisman--State Involvement + Coercion
With these principles in mind, we now turn to a
consideration of recent Supreme Court precedent in the
case of Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649,
120 L.Ed.2d 467 (1992). There, the Supreme Court held
that a prayer delivered by a clergyman at a public middle
school graduation ceremony violated the Establishment
Clause. In the majority opinion written by Justice
Kennedy, the Court noted that two facts controlled its
decision: (1) “state officials direct{ed] the performances
of a formal religious exercise;" and (2) “even for those
students who object[ed] to the religious exercise, their
attendance and participation in the state-sponsored
religious activity [were] in a fair and real sense
obligatory." 505 U.S. at ----, 112 S.Ct. at 2655.
Concerning the first controlling fact, the Court stated
that the school principal’s extensive involvement in
deciding to have prayers at graduation, in choosing the
religious participant, and in controlling the content of the
prayer rendered the graduation a "state-sponsored religious
exercise.” 505 U.S. at ---- - ----, 112 S.Ct. at 2655-58.
That the school attempted to make the prayers
nonsectarian was not controlling. Although such measures
may lessen a prayer’s divisive impact, the Constitution
does "not permit school officials to assist in composing
prayers as an incident to a formal exercise for their
students.” 505 U.S. at ----, 112 S.Ct. at 2657.
As to the second dominant fact, the Court reasoned
that graduation prayers constituted governmental coercion —
because the state "in effect required participation in a
religious exercise." 505 U.S. at ----, 112 S.Ct. at 2659.
a-40
The majority conducted a “delicate and fact-sensitive"
inquiry that identified several factors contributing to the
coercive nature of the ceremony. 505 U.S. at ----, 112
S.Ct. at 2661. Significantly, each factor relied at least in
part on the “heightened concerns [associated] with
protecting freedom of conscience from subtle coercive
pressure in the elementary and secondary public schools.”
505 U.S. at ---, 112 S.Ct. at 2658 (emphasis added).
Initially, the Court emphasized that high school
students perceive the involvement of their teachers,
principals and friends in a religious exercise as inducing a
participation they might otherwise reject. According to
the Court: The undeniable fact is that the school district’s
supervision and control of a high school graduation
ceremony places public pressure, as well as peer pressure,
on attending students to stand as a group or, at least,
maintain respectful silence during the Invocation and
Benediction. 505 U.S. at ----, 112 S.Ct. at 2658. The
Court maintained that this pressure, to act, although subtle
and indirect, can be as real as overt coercion to
adolescents susceptible to pressure from their peers.
Although the Court recognized that standing with the
group or remaining silent can signify “simple respect for
the views of others," 505 U.S. at ---, 112 S.Ct. at 2658,
it argued that adolescents are likely to view their
acquiescence to the group ritual as an expression of
participation: What matters is that, given our social
conventions, a reasonable dissenter in this milieu could
believe that the group exercise signified her own
participation or approval of it. 505 U.S. at ----, 112 S.Ct.
at 2658. Thus, in the environment of a middle school
(and presumably a high school) graduation ceremony,
there is a dual risk: the risk that a reasonable dissenter
a-4]
would feel compelled to conform her behavior to that of
the other participants, and the concomitant risk that the
adolescent dissenter would interpret her conformity as
manifesting an approval of or participation in the group
exercise.
Because reasonable dissenters could believe that the act
of standing or remaining silent signifies participation, they
would be placed “in the dilemma of participating, with all
that implies, or protesting." 505 U.S. at ----, 112 S.Ct. at
2658. The Court reasoned, however, that the force of
peer pressure made protest unlikely. To be sure,
attendance at the ceremony was not required. Thus,
dissenting students could try to avoid the dilemma
altogether by not attending the graduation ceremony. The
Court, however, found that this did not excuse any
inducement or coercion in the ceremony itself: [T]o say a
teenage student has a real choice not to attend her high
school graduation is formalistic in the extreme....
Everyone knows that in our society and in our culture high
school graduation is one of life’s most significant
occasions. 505 U.S. at ----, 112 S.Ct. at 2659. Thus,
even though not required, attendance is not voluntary "in
any real sense ... for absence would require forfeiture of
those intangible benefits which have motivated the student
through youth and all her high school years." 505 U.S. at
-——-, 112 S.Ct. at 2659.
‘At @ minimum, then, the Lee majority held that "the
Constitution guarantees that government may not coerce
anyone to support or participate in religion.” 505 U.S. at
----, 112 S.Ct. at 2655. To be sure, the majority’s
conception of what constitutes coercion was broad;
coercion derives not from any formal requirement
conditioning the receipt of a diploma on attendance at the
a-42
ceremony, but from the state’s apparently more subtle
attempt "to exact religious conformity from a student as
the price of attending her own high school graduation."
505 U.S. at ----, 112 S.Ct. at 2660.
The Court specifically avoided deciding the issue
presented in this case; namely, whether adults at a
university commencement who object would also feel
compelled to participate: We do not address whether [the
dilemma of conforming or protesting] is acceptable if the
affected citizens are mature adults, but we think the State
may not, consistent with the Establishment Clause, place
primary and secondary school children in this position.
505 U.S. at ---- - ----, 112 S.Ct. at 2658-59 (emphasis
added). Nevertheless, a careful reading of Lee yields no
constitutional impediments to the ceremony at issue in this
case.
(1). State Involvement
The first prong of Lee requires that there be sufficient
State involvement in the graduation ceremony to render it a
“state-sponsored religious exercise." That requirement
was satisfied in Lee because the school principal had
decided to include prayers in the ceremony, chosen the
religious participant, and influenced the content of the
prayer. Based upon the record as it now exists, we think
that this case is indistinguishable from Lee on this point.
Above all, a graduation ceremony is a
university-controlled event. University officials pick the
date, time and locations for the various ceremonies. They
control the content and order of events. They also decide
whether the ceremony will include an invocation and
benediction: [TJhis is a choi-- attributable to the State, and
from a constitutional perspective it is as if a state statute
decreed that the prayers must occur. 505 U.S. at ——-, 112
a-43
S.Ct. at 2655; see Dep. of Shoshana Watkins, at pp. 7-8.
Moreover, a university official chooses the religious
participant. This year the invited clergyman is the
Reverend Robert W. Sims, a priest with St. Paul’s
Catholic Center. (Bolyard Aff. P 8). Finally, a university
official sets parameters on the prayer’s content.
Typically, these parameters involve a simple reminder to
the clergyperson to recognize that the audience will be
diverse and to make his or her remarks “unifying and
uplifting for all.” (Watkins Dep., at p. 13). Thus,
"[g]iven that graduation is ultimately a school-controlled,
school-sponsored event, there appears in this case to be
just as much state involvement as appeared in" Lee.
Harris v. Joint School Dist. No. 241, 41 F.3d 447, 454
(9th Cir. 1994).
(2). Coercion
The second prong of Lee requires a showing of
coercion. As discussed above, Justice Kennedy’s
explication of what constitutes coercion was broad,
when it does not involve formal demands or formal
sanctions. Yet even under this expanded view, we think
that in this respect it is unlikely that Plaintiffs will prevail
on the merits.
Undeniably, the plaintiffs here--unlike the junior and
high school students in Lee--are mature adults who have
either earned or are in the process of earning postgraduate
degrees—-law degrees, no less! Professor Tanford, for
example, is forty-five years old and a tenured law
professor. Kimberly MacDonald is twenty-four years old
and is about to complete her third and final year of law
school. Each has chosen a discipline where a central and
valued skill is the ability to think independently and listen
Critically. Each is trained to analyze arguments skeptically
and not to be subtly coerced by pressure, peer or
conclude that they will not be easily pressured into
conforming their actions to those of the other participants.
Nor is protest an unrealistic alternative for them.’ Thus,
the “dilemma of participating ... Or protesting” never
materializes. 505 U.S. at —, 11
purposefully exposed to a wider variety of ideas and
beliefs than primary and secondary school students. It is
part and parcel of what it means to be educated. Many of
these competing ideas, beliefs and value systems, "they
find distasteful or immoral or absurd or all of these."
“Indeed, both Professor Tanford and Ms. MacDonald have
shown the ability to voice dissent in such matters in the past. For
example, the last time Professor Tanford attended the
university-wide ceremony, he absented himself from the ceremony
when the invocation began, returned for the middle part, and left
again before the closing benediction. Ms. MacDonald attended a
Prior ceremony but remained seated during these portions
a-45
Lee, 505 U.S. at ----, 112 S.Ct. at 2657.° In many
significant ways, the very mission of higher education is to
challenge basic values instilled during childhood at a time
when the individual student has the intellectual maturity to
choose between competing beliefs.’
Thus, the special solicitude for younger students
traditionally shown by federal courts is not required here:
There is substance to the contention that college students
are less impressionable and less susceptible to religious
indoctrination. Common observation would seem to
support that view.... The skepticism of the college student
is not an inconsiderable barrier to any attempt or tendency
*The Supreme Court has stated that exposure to competing
value systems is essential to our system of self-government: The
[college] classroom is peculiarly the “marketplace of ideas." The
Nation’s future depends upon leaders trained through wide
exposure to that robust exchange of ideas which discovers truth
“out of a multitude of tongues, [rather] than through any kind of
authoritative selection." Keyishian v. Board of Regents, 385 U.S.
589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1967) (citation
omitted).
7Courts and commentators have generally described primary
and secondary schools as playing a different role from higher
education: The central fact in the distinction between higher and
lower education is the role of value inculcation in the teaching
process. The public schools in the United States traditionally have
viewed instilling the young with societal values as a significant
part of the schools educational mission. Such a mission is directly
opposed to the vision of education that underlies the premises of
academic freedom in higher education. Goldstein, The Asserted
Constitutional Right of Public School Teachers to Determine What
They Teach, 124 U.Pa.L.R. 1293, 1342-43 (1976).
a-46
to subvert the ... limitations [prohibiting religious
instruction]. Furthermore, by their very nature, college
and postgraduate courses tend to limit the opportunities for
sectarian influences by virtue of their own internal
disciplines. Tilton v. Richardson, 403 U.S. 672, 686, 91
S.Ct. 2091, 2099, 29 L.Ed.2d 790 (1971); see also
Edwards v. Aguillard, 482 U.S. 578, 583-84, 107 S.Ct.
2573, 2577-78, 96 L.Ed.2d 510 (1987) (noting that
because children in public schools are highly
impressionable, schools must be careful about sending any
religious message); Grand Rapids School Dist. v. Ball,
473 U.S. 373, 383, 105 S.Ct. 3216, 3222; 87 L-Ed.2d
267 (1985) ("the government’s activities in this area [of
religion in public schools] can have a magnified impact on
impressionable young minds"); Widmar v. Vincent, 454
U.S. 263, 274 n. 14, 102 S.Ct. 269, 276-77 n. 14, 70
L.Ed.2d 440 (1981) (university students are young adults
and “are less impressionable than younger students").
The atmosphere of a university graduation is also
different from that of a high school graduation. At a high
school graduation: teachers and principals must and do
retain a high degree of control over the precise contents of
the program, the speeches, the timing, the movements, the
dress, and the decorum of the students. In this
atmosphere the state-imposed character of an invocation
and benediction by clergy selected by the school combine
to make the prayer a state-sanctioned religious exercise in
which the student was left with no alternative but to
submit. Lee, 505 U.S. at ----, 112 S.Ct. at 2660 (citations
omitted). In other words, the ceremony is highly
controlled and “analogous to the classroom setting, where
[the Court has] said the risk of compulsion is especially
high." Id.
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IU’s graduation, by contrast, has a much less formal
setting. At the university-wide ceremony, there will be
5,000 graduates and 30,000 spectators in a football
stadium. People from all manner of backgrounds, races
and religious creeds (including no religious creed) will
attend. The ceremony, both by its size and program
content, is impersonal. Students are graduated en masse
from their particular school with only a few receiving
individual recognition. Thousands of graduates do not
attend. In a large stadium filled with thousands of
graduates, a nonadherent could dissent without being
noticed and without fear of being identified as a
nonconformist. Nor will individual acts of standing or
remaining silent necessarily be construed as expressing a
position on the theological merit of certain values or of
have meaningful alternatives. Indeed, they can attend the
admittedly more intimate law school ceremony. That
ceremony does not contain an invocation or benediction,
but does allow for “individual and personalized
recognition" of each students’ achievement in earning a
degree. (Dep. of Leonard Fromm, at p. 18). Perhaps for
this reason, 75% to 90% of law students attend this
ceremony.
Using language from Lee, Plaintiffs argue in response
that the University’s inclusion of an invocation and
benediction “forces [them] to choose between participating
in prayers that they find offensive” or missing the
graduation ceremony. (Brief in Support, p. 4). However,
as Justice Kennedy expressly stated in Lee: We do not
hold that every state action implicating religion is invalid
if one or a few citizens find it offensive. People may take
offense at all manner of religious as well as nonreligious
messages, but offense alone does not in every case show a
violation. Lee, 505 U.S. at ----, 112 S.Ct. at 2661.
Therefore, Plaintiffs must provide more than a simple
allegation that a nonadherent feels awkwardness during a
religious exercise. There needs to be an additional
showing that the state’s involvement in the religious
exercise is likely to induce an observer’s reluctant
participation, or to make dissent an unlikely alternative, or
to influence the development of an unformed religious
identity, or all of the above._Given the advanced mental
and social abilities of these plaintiffs, however, as
explained above, there is no such risk here.
In sui, the "symbolism of a union between church and
state is most likely to influence children of tender years,
whose experience is limited and whose beliefs
consequently are the function of environment as much as
free and voluntary choice." Grand Rapids School Dist. v.
Ball, 473 U.S. 373, 390, 105 S.Ct. 3216, 3226, 87
L.Ed.2d 267 (1985).* Since these concerns are not
present at a university commencement involving thousands
of graduates, multiple ceremonies, advanced degrees and
well-defined personal and religious identities, we find that
¢
7
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Plaintiffs are unlikely to prevail on the merits under Lee
v. Weisman.
B. The Lemon Test--Its Application, If Any.
For two decades prior to Lee, the Supreme Court
applied the now much maligned Lemon test to
Establishment Clause cases. Lemon v. Kurtzman, 403
U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).
Reliance on Lemon for determination of Establishment
Clause violations, however, has noticeably declined in the
last decade. At least three of the Supreme Court’s most
recent decisions have either ignored Lemon or openly
disparaged it. See Board of Education of Kiryas Joel
Village School Dist. v. Grumet, == U-S. ----; 114 S.Ct.
2481, 129 L.Ed.2d 546 (1994); Zobrest v. Catalina
Foothills School Dist., 509 U.S. 1, 113 S.Ct. 2462, 125
L.Ed.2d 1 (1993); Lee, 505 U.S. at --—-, 112 S.Ct. 2649.
And over the years, at least five currently sitting Justices
have called for the elimination of Lemon as a general
purpose test for all Establishment Clause cases. See
Lamb’s Chapel v. Center Moriches School Dist., 508 U.S.
384, ---, 113 S.Ct. 2141, 2150, 124 L.Ed.2d 352 (1993)
(listing cases) (Scalia, J., dissenting). Lee itself expressly
side-stepped the issue, stating that the constitutionality of
the religious activity in that case could be judged without
reference to Lemon. 505 U.S. at ----, 112 S.Ct. at 2655.
Most likely, Lemon’s unitary test will some day be
replaced by a series of category-specific rules. See
Grumet, --- U.S. at ---- - —-, 114 S.Ct. at 2499-2500
(O’Connor, J., concurring). Presumably, under such an
approach, future cases involving official public occasions
with religious components will be governed by Lee v.
Weisman. Indeed, because "Lemon was not devised to
identify prayer smuggled into civic exercises," this Court
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is similarly “not disposed to resolve this case by parsing
Lemon." Sherman v. Community Consol. School Dist.
21, 980 F.2d 437, 445 (7th Cir. 1992).
We emphasize, however, that a district court’s role is
* not that of prophet, but rather that of disciple. We are
by the Supreme Court. See Carter v. Peters, 26 F.3d 697
(7th Cir. 1994); Fleischfresser v. Directors of School Dist:
200, 15 F.3d 680, 686 (7th Cir. 1994); Sherman v.
Community Consol. School Dist. 21 of Wheeling Tp., 8
F.3d 1160, 1164 n. 9 (7th Cir.1993), cert. denied, ---
U.S. ---, 114 S.Ct. 2109, 128 L.Ed.2d 669 (1994);
Cohen v. City of Des Plaines, 8 F.3d 484 (7th Cir. 1993),
cert. denied, -- U.S. -—-, 114 S.Ct. 2741, 129 L.Ed.2d
861 (1994); Gonzales v. North Tp. of Lake County, Ind.,
4 F.3d 1412, 1418 (7th Cir.1993); Berger by Berger v.
Rensselaer Cent. School Corp., 982 F.2d 1160, 1162 (7th
Cir.1993), cert. denied, — U.S. ~——-, 113 S.Ct. 2344, 124
L.Ed.2d 254 (1993); see also Lamb’s Chapel v. Center
Moriches Union Free School Dist., —- U.S. —-, -—--, 1.
Clear Creek Indep. School Dist., 977 F.2d 963, 967 (Sth
Cir. 1992), cert. denied, — U.S. —, 113 S.Ct. 2950, 124
a-51
L.Ed.2d 697 (1993). Thus, being faithful to our charge,
we now turn to Lemon for whatever guidance it must
provide.
In Lemon, the Supreme Court set forth a three-part test
for determining the constitutionality of state action
challenged under the Establishment Clause. First, the
state action must have a secular purpose. Second, its
primary purpose must neither advance nor inhibit religion.
Third, the state action must not produce excessive
government entanglement with religion. Id. 403 U.S. at
612-13, 91 S.Ct. at 2111. The first two criteria require
that the government remain neutral’ with respect to
religion:
The purpose prong of the Lemon test asks whether
government’s actual purpose is to endorse or disapprove of
religion. The effect prong asks whether, irrespective of
government’s actual purpose, the practice under review in
fact conveys a message of endorsement or disapproval.
An affirmative answer to either question should render the
challenged practice invalid. Wallace v. Jaffree, 472 U.S.
38, 56 n. 42, 105 S.Ct. 2479, 2490 n. 42, 86 L.Ed.2d 29
%In that very terminology lies one of the most vexing
analytical and application problems with the Lemon test, of
course. Government neutrality turns out to be illusory—a posture
almost impossible to establish and maintain. It is a rare act or
event or practice that does not pull one either toward or away
favoring or disfavoring, advancing or inhibiting, the "religious"
purpose. And Lemon’s mandate to remain neutral and reach
equilibrium inevitably entails the pendulum’s movement in one
direction or the other.
a-52
(1985) (quoting Lynch v. Donnelly, 465 U.S. 668, 690,
104 S.Ct. 1355, 1368, 79 L.Ed.2d 604 (1984)).
(1). Secular Purpose
The Supreme Court has recognized that Lemon does
not mandate that the government activity have an
exclusively secular purpose; rather, Lemon only requires
that at least one secular purpose exist. See Lynch v.
Donnelly, 465 U.S. 668, 681 n. 6, 104 S.Ct. 1355, 1363,
n. 6, 79 L.Ed.2d 604 (1984). However, the purpose
1368. Nonetheless, several courts have acknowledged that —
certain kinds of prayer serve the secular purpose. of
worthy of appreciation in society." Lynch, 465 U.S. at
693, 104 S.Ct. at 1369-70 (O’Connor, J., concurring); see
also Jones v. Clear Creek Indep. School Dist., 977 F.2d
963, 967 (Sth Cir.1992), cert. denied, 508 U.S. 967, 113
S.Ct. 2950, 124 L.Ed.2d 697 (1993) (finding secular
purpose in high school graduation prayers); County of
Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U.S. 573, 595, n. 46, 109 S.Ct.
3086, 3102, n. 46 106 L.Ed.2d 472 (1989), !°
In this case, the Court finds persuasive those cases that
have determined solemnization to be a secular purpose of
graduation prayer and concludes that the benediction and
“But see Harris v. Joint School Dist. No. 241, 41 F.3d 447,
458 (9th Cir. 1994), petition for cert. filed, 63 USLW 3599 (Jan.
31, 1995) (finding no secular purpose in high school graduation
prayers).
a-53
invocation at issue here serve such a function. We do not
find that the preeminent purpose of the invocation and
benediction in question to be religious. The religious
nature of a prayer is largely determined by the context of
which it is a part, the entity to whom it is addressed, and
the participants in it. A ceremonial prayer led by the
President of the United States or by the Chaplain of
Congress does not have the same religious content as a
prayer offered during a particular religious body’s worship
services. Prayer at a university-wide commencement,
which lasts a few seconds and comprises a minute portion
of the overall ceremony, differs substantially from prayer
at a baccalaureate service, which is expressly religious.
Moreover, the Court finds compelling the secondary
secular purpose of continuing to include an invocation and
benediction as part of a 155-year old university tradition.
See Marsh v. Chambers, 463 U.S. 783, 786, 790, 792,
103 S.Ct. 3330, 3333, 3335, 3336, 77 L.Ed.2d 1019
(1983). For these reasons, the Court holds that the secular
purpose prong of the Lemon test has been satisfied.
(2). Primary Effect to Advance Religion
Under the second prong of Lemon, the key inquiry is
whether the university’s decision to have a commencement
invocation and benediction sends primarily a message of
endorsement or disapproval of religion. See Corporation
of Presiding Bishop of the Church of Jesus Christ of
Latter-Day Saints v. Amos, 483 U.S. 327, 337, 107 S.Ct.
2862, 2869, 97 L.Ed.2d 273 (1987) ("[T]o have forbidden
’effects’ under Lemon, it must be fair to say that the
government itself has advanced religion through its own
activities and influence."); County of Allegheny v.
ACLU, 492 U.S. 573, 592-93, 109 S.Ct. 3086, 3100-01,
106 L.Ed.2d 472 (1989); Wallace v. Jaffree, 472 U.S. at
a-54
75, 105 S.Ct. at 2499; Lynch, 465 U.S. at 692, 104
S.Ct. at 1369 (O’Connor, J., concurring). In School Dist.
of City of Grand Rapids v. Ball, 473 U.S. 373, 390, 105
S.Ct. 3216, 3226, 87 L.Ed.2d 267 (1985), the Supreme
Court observed that "an important concern of the effects
test is whether the symbolic union of church and state
effected by the challenged governmental action is
sufficiently likely to be perceived by adherents of the
controlling denominations as an endorsement, and by the
non-adherents as a disapproval, of their individual
religious choices."
In this case, given the non-sectarian and brief nature of
the invocation and benediction, as well as the
sophistication of the audience and the university setting,
we find that adherents and nonadherents alike could not
perceive the two prayers as either endorsing or denigrating
their particular religious choices or religion generally. See
Jones, 977 F.2d at 967 (finding that because a student-led
prayer did not increase the religious conviction among
graduation attendees by attracting new believers or
increasing faith of faithful, effects prong was satisfied).
To hold otherwise is to ignore that the educative mission
of the University is to expose developing young adults to a
universe of new ideas and beliefs, most of which the
University claims no special allegiance to. Unlike
elementary and secondary school children for whom courts
have repeatedly shown heightened concer, see Ball, 473
U.S. at 390, 105 S.Ct. at 3226; Fleischfresser, 15 F.3d at
686; Sherman, 8 F.3d at 1166, adults who have
matriculated to the university level and particularly
Plaintiffs, who have completed graduate-level training, do
not require the Court's protection: niversity students are,
of course, young adults. They are less impressionable
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than younger students and should be able to appreciate that
the University’s policy is one of neutrality toward religion.
Widmar, 454 U.S. at 274 n. 14, 102 S.Ct. at 276-77 n. 14
(internal quotations and citation omitted). Thus, a
30-second prayer delivered as part of larger secular
ceremony "would no more commit the University ... to
religious goals than it is now committed to the goals of the
Students for a Democratic Society [or] the Young Socialist
Alliance." Id. at 274, 102 S.Ct. at 276 (internal quotation
marks omitted). Indeed, Professor Tanford, an adherent
of the Roman Catholic faith, has admitted as much when
he stated that he does not view the non-sectarian prayer as
endorsing any particular religion or influencing people’s
religious beliefs. See Tanford Depo. at 42-43.
The Court realizes that there are situations where
benedictions or invocations could become so sectarian,
fervent or dogmatic as to send a message of disapproval of
non-adherents’ beliefs.'' Even Plaintiffs seem to expect,
however, that the brief invocation and benediction at issue
here will not be of that nature.’ Thus, based on the
factual record before us, the Court finds that the Plaintiffs
'l Although it is reasonable to assume that Indiana University
would have altered its practices at each of its satellite campuses
had the outcome of this motion been different, we emphasize that
the invocations and benedictions recited at IU’s other campuses are
not before us. Rather, Plaintiffs constructed their lawsuit to
challenge only the Bloomington campus’ university-wide
ceremony.
'2Professor Tanford, for example, describes the prayers as
merely “offensive” because they represent a "watered down
nonsectarian civic religion.” (Tanford Dep. at p. 28).
a-56
‘—_—oia
have not demonstrated a likelihood of succeeding on the
second prong of Lemon.
(3). Excessive Entanglement
Plaintiffs maintain that the invocation and benediction
violate the excessive entanglement prong of the Lemon test
because the University would be required to monitor the
content of the prayers in order to ensure that inappropriate
prayers are not given. Defendants respond that any
monitoring is at most de minimis because the university ’s
involvement is limited to inviting the clergypersons and
giving general suggestions that the invocation and
benediction be uplifting.
In Lemon, the Supreme Court considered whether a
Rhode Island statute paying a portion of private school
teachers’ salaries for their secular Classes constituted
excessive entanglement. The Court explained that the
excessive entanglement inquiry encompasses an
examination of "the character and Purposes of the
institution that are benefited, the nature of the aid that the
State provides, and the resulting relationship between the
government and the religious authorities." Lemon, 403
U.S. at 613, 91 S.Ct. at 2111. Because the state would
have to ensure that the money was not being used for
religious purposes, the Court concluded that "[a]
comprehensive, discriminating, and continuing state
surveillance will inevitably be required to ensure that these
restrictions are obeyed and the First Amendment otherwise
respected." Id. at 616, 91 S.Ct. at 2113.
Since Lemon, Supreme Court cases relying on the
excessive entanglement prong have largely involved an
enduring association between state and religious
institutions. Often the cases involved state aid to religious
or parochial institutions for particular secular purposes.
a-57
See, e.g., Lemon, 403 U.S. 602, 91 S.Ct. 2105, 29
L.Ed.2d 745; Ball, 473 U.S. 373, 390, 105 S.Ct. 3216,
3226, 87 L.Ed.2d 267 (sending government teachers to
private schools to teach secular classes constituted
excessive entanglement). Other cases have involved
government delegations of power to religious bodies. See,
e.g., Larkin v. Grendel’s Den, 456 U.S. 913, 102 S.Ct.
1765, 72 L.Ed.2d 171 (1982) (statute giving
church-affiliated schools power to veto nearby liquor
licenses struck down as excessive entanglement).
Thus, in light of this caselaw, the Court finds that the
mere presence of a religious figure on the commencement
stage is not excessive entanglement. In order for the
entanglement to be excessive, the interplay between church
and state must be more pervasive and burdensome. Nor is
the limited influence that University officials traditionally
exercise over the content of the prayers excessive. The
University’s alleged monitoring of the graduation cleric’s
prayers simply consists of the selection of a cleric and a
reminder to him or her to include an uplifting, general
message. Such interaction does not require that "a
particular religion ... endure the ongoing presence of state
personnel whose primary purpose is to monitor" prayer
contents in "an attempt to guard against the infiltration of
religious thought." Aguilar v. Felton, 473 U.S. 402, 413,
105 S.Ct. 3232, 3238, 87 L.Ed.2d 290 (1985). Nor does
it necessitate frequent contacts between University officials
and local clergy. Thus, because the degree of
entanglement in the instant case is relatively minor when
compared with other Establishment Clause cases, the
Court finds that Plaintiffs are unlikely to succeed on the
merits of prong three.
a-58
In short, we find that the Plaintiffs have failed to
establish a likelihood of Succeeding on the merits under
any of Lemon’s three prongs.
V. CONCLUSION
The issues presented by this motion are both legally
and philosophically difficult. The Caselaw, as well as our
consciences, require that we honor two competing
precepts: that what might begin as a tolerant expression
of religious views may end in a policy to indoctrinate and
coerce in the hands of the government; and almost
paradoxically, that a "relentless and all-pervasive attempt
to exclude religion from every aspect of public life could
itself become inconsistent with the Constitution." Lee,
505 U.S. at ----, 112 S.Ct. at 5661. As the Supreme
Court’s splintered opinions and seemingly inconsistent
results in this area imply, the line between religious
indoctrination and government accommodation is often
obscure or illusory. Nevertheless, the true measure of
constitutional adjudication "is the ability and willingness to
distinguish between real threat and mere shadow."
Abington School Dist. v. Schempp, 374 U.S. 203, 308, 83
S.Ct. 1560, 1616, 10 L.Ed.2d 344 (1963).
Yet we caution both sides not to become so dazzled by the
art of their craft that a mutually beneficial accommodation
is ignored. Both sides’ briefs are replete with common
sense arrangements that could be made, thus obviating the
need for further court Supervision. The Court does not
mean to suggest that the appropriateness of a benediction
at IU’s commencement is not a legitimate issue for
discussion. The best oracle for the declaration of religious
a-59
norms, however, is in the community itself and not the
federal courthouse.’ Thus, for the reasons stated above,
we DISMISS FOR LACK OF STANDING Plaintiff David
Suess and DENY Plaintiffs’ motion for a preliminary
injunction.
It is so ORDERED.
'3In this respect, the Court joins in the sentiments of Judge
Guy of the Sixth Circuit: In this age, [a state-sponsored religious
activity] might reflect some insensitivity to the diversity that is
now America. But let us tackle the problem with some good old
Yankee ingenuity--lobby for a course in comparative religions; ...
form a Zen Buddhist club; wear a t-shirt proclaiming the virtues
of agnosticism; but, if I am permitted to use the expression, for
heavens’s sake, stay out of the courthouse and quit trivializing the
Constitution. Washegesic v. Bloomingdale Public Schools, 33 F.3d
679, 685 (6th Cir.1994) (Guy, J., concurring).
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