Opposition Brief — Tanford v. Brand

No. 96-1894 Suprems Wourt, us, |

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Supreme Court of the Hrritedl Statewen

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- October Term, 1996

JAMES A. TANFORD and JOSEPH ANTHONY URBANSKI,

Petitioners,

VS.

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,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

DOROTHY J. FRAPWELL STANLEY C. FICKLE

University Counsel Counsel of Record

MICHAEL A. KLEIN ROBERT P. JOHNSTONE

Associate University Counsel BARNES & THORNBURG

Bryan Hall 211! 11 South Meridian Street

Indiana University Indianapolis, Indiana 46204

Bloomington, Indiana 47405 (317) 638-1313

(812) 855-9739

Attorneys for Respondents

QUESTION PRESENTED

Whether Indiana University’s 155-year tradition of inviting

a. local religious leader familiar with the university community to

give an invocation and benediction to open and close the

Commencement Ceremony on its Bloomington campus violates the

Establishment Clause.

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LIST OF PARTIES

James Alexander Tanford, Kimberly J. MacDonald, David

Suess and Joseph Anthony Urbanski were the plaintiffs-appellants in

the court below. Dr. Myles Brand, in his individual and 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, were the

defendants-appellees.

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TABLE OF CONTENTS

Page

ee i

a oc ok le ee cccuccnn. ii

TABLE GOP AUTHORITIES ......................... iv

STATEMENT OF THE CASE ....................... |

A. Commencement Activities And Commencement

a eng ie a rc ac |

B. The Invocation And Benediction ................ 3

ee 4

D. Available Accommodation .................... 8

REASONS FOR DENYING THE WRIT................ 8

I. The Seventh Circuit Considered And Correctly

OS OT 8

Il. The Seventh Circuit Properly Considered Marsh

ee 12

Ill. Petitioners’ Other Contentions Are Also Wrong ... 19

es ois hc ks cw ced eaccces 22

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TABLE OF AUTHORITIES CITED

Cases:

Agostini v. Felton, _U.S.__, 1997 WL 338583 (1997) ...... 12

Bowen v. Kendrick, 487 U.S. 589 (1988).............sssesseeeee 9,11,12

Capital Square Review and Advisory Board v. Pinette,

DES WB. Faas CES BS. Gh, DOG CIID ccctrcectcercrcvsncstsrocesisece 21

Corporation of the Presiding Bishop of the Church of

Jesus Christ of Latter-day Saints v. Amos, 483

TAs: SEE IEE D tsincupesciiaiinastginieividieeniaiaiiiaeehiaiaiiieettiainiiiomebnians &

County of Allegheny v. American Civil Liberties Union,

Greater Pittsburgh Chapter, 492 U.S. 573

LS NOM BMRA OER ae Na Way 10,18,19,20,21

Edwards v. Aguillard, 482 U.S. 578 (1987) ......se.-ssesssessssessseeee 17

Engle v. Vitale, 370 U.S. 421 (1962) ....csc.ssesssessseesseesseees 10,17,19

Gaylor v. United States, 74 F.3d 214 (10th Cir.), cert.

denied, _U.S.___, 116 S. Ct. 1830 (1996)... 20

Harris v. City of Zion, 927 F.2d 1401 (7th Cir. 1991),

Cart. Game, BS Bs TRUE GIGI) ncistinesssnseseccsvssnevereseesenens 20

Lee v. Weisman, 505 U.S. 577 (1992) ......... 13-14,15-16,17,19,22

Lemon v. Kurtzman, 403 U.S. 602 (1971) .............cccsssseceseseeees 8-9

ee ee ee

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TABLE OF AUTHORITIES CITED

Cases:

Lynch v. Donnelly, 465 U.S. 668 i. 9,10,11,12,20,22

Marsh v. Chambers, 463 U.S. 783 ES 12,17,18,19

Mueller v. Allen, 463 U.S. 388 Rae 12

Robinson v. City of Edmond, 68 F.3d 1226 (10th Cir. 1995).....20

Roemer v. Board of Public Works of Maryland, 426

Pe I he a 17

Rosenberger v. Rector and Visitors of the University

of Virginia, 515 U.S. 819, 115 S. Ct. 2510 (1995) ............. 22

School District of Abington v. Schempp,

Niue rec bread, |<, ee AND 16,17

Tilton v. Richardson, 403 U.S. 672 |_| CE ee 16,17

‘Wallace v. Jaffree, 472 U.S. 38 (1985) ....c.c.cecececesssosseoeeee. 9,10,17

Widmar v. Vicent, 454 U.S. 263 (1981) ......cc.cececcssecessccocssseeseee. 16

Constitutional Provisions:

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Rules:

5 j= PARR oabpiriatnercce ers Sr rans

STATEMENT OF THE CASE

The Seventh Circuit affirmed the district court’s ruling that

inclusion of a brief, nonsectarian invocation and benediction during

Indiana University’s Commencement Ceremony on its Bloomington

campus does not violate the Establishment Clause of U.S. Const.

amend. I. The following facts are established by uncontroverted

summary judgment evidence. Pursuant to Sup. Ct. Rule 15.2,

misstatements of facts in the petition for writ of certiorari (“Petition”)

are also noted.

A. Commencement Activities And Commencement

Ceremony.

Commencement on Indiana University’s Bloomington

campus consists of a wide range of activities, which begin on Friday

afternoon with the Senior Class Tree Dedication and Graduation

Send-Off at the President’s Home. This is followed by other

activities in the afternoon and evening, including special events by

various schools for graduates and their families. On Saturday the

activities continue with a University-wide Commencement

Ceremony in Memorial Stadium (the football stadium) during the

morning, followed by special events throughout the day by other

schools for graduates and families. There are also a variety of public

displays and exhibits throughout the three-day weekend.

Approximately 30,000 to 35,000 people attend the Saturday

morning Commencement Ceremony. All graduating students are

invited to this University-wide ceremony in the football stadium.

However, attendance is voluntary, and there is no penalty of any sort

for students who chose not to attend. Of approximately 7,400

graduating students in undergraduate and graduate schools, the

University estimates that about 5,000 attend.

2.

The Commencement Ceremony begins with an academic

procession of approximately 5,000 graduating students and 150

university officials and faculty members. The students and faculty

are then seated on chairs placed on the football field. The 25,000 to

30,000 visitors and guests are seated in the permanent football

stadium seats. The ceremony consists of the national anthem, an

invocation, an address by the commencement speaker,' the conferral

of honorary degrees, the presentation of the class, student remarks,

the charge to the graduating class, the conferral of degrees, the

induction ceremony, the singing of “Hail to Old IU,” and a

benediction.”

As part of the Commencement activities, the School of Law

conducts a Recognition Ceremony for its graduates and their families

and friends on Saturday afternoon in the Indiana University

Auditorium. This annual ceremony is much smaller than the

University-wide ceremony and gives the law school an opportunity

to recognize each of its graduates individually on the stage of the

auditorium. In 1995 the law graduates were addressed by Attorney

General Janet Reno. The law school also hosts a School of Law

Luncheon for its graduating students and their families. These law

school functions do not have an invocation or benediction.

Historically, 15% to 55% of the students graduating from the law

school have attended the University-wide Commencement

Ceremony (as opposed to the separate law school ceremony).

' In 1995, the commencement speaker was former United States Senator Birch

Bayh.

2 If the weather is adverse, the Commencement Ceremony may be held in two

sessions in Assembly Hall (the basketball fieldhouse), with graduates and faculty

seated on chairs on the basketball floor and guests in the permanent fieldhouse

seats.

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B. The Invocation And Benediction.

The University’s tradition of an invocation and benediction

to open and close the Commencement Ceremony has been

established since at least 1840—a tradition spanning one hundred

and fifty-five years of University history. A religious leader from the

Bloomington community is invited to give the invocation and

benediction. The person is selected from those actively involved in

the university community and familiar with the diversity of the

campus. A different person is chosen each year so that invitations

rotate in the local community. The person is invited to give an

invocation and benediction which are uplifting and unifying to fit the

occasion.

In 1995, the Reverend Robert Sims of the St. Paul Catholic

Center delivered the invocation and benediction at the

Commencement Cersmony. St. Paul is a parish in Bloomington

which serves university students. In 1994, the invocation and

benediction were given by Reverend Barbara Carlson of the

Unitarian Universalist Church in Bloomington.’ Over the previous

five years, the invocation and benediction were delivered by Rev.

Cynthia Cochran Camey, First Presbyterian Church; Rev. Philip

> The text of Reverend Sims’ benediction at the 1995 Commencement Ceremony

is quoted in the Petition at 5. The text of Reverend Carlson’s 1994 benediction

was:

Before we rush out of this place, floating, climbing, dancing, we pause

again in reverence before the holy.

Aware that this ceremony has been a door that opens, yet closes, too; a

passage in time.

Take what you have learned.

And add to it; the truest knowledge grows.

Give thanks and turn yourself with courage toward the future.

Go and live.

And may life’s deepest meanings attend you. Amen.

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Amerson, First United Methodist Church; Rev. Ross Marrs, First

United Methodist Church; and Rabbi Susan Shifron, B’ Nai B’Rith

Hillel Foundation.‘

The University’s purpose and intent in continuing the 155-

year tradition on its Bloomington campus is not to sponsor or

establish any particular religious faith or to endorse religion in

general. Rather, the University believes that inclusion of a

nonsectarian invocation and benediction to open and close the

Commencement Ceremony serves significant secular objectives.

The invocation and benediction serve to emphasize the solemnity and

dignity of the larger ceremony of which they are a small part. In

addition, inclusion of the invocation and benediction continues a

tradition on a campus that cherishes both the physical structures and

the traditions that it has inherited from the preceding century. By

participating in the tradition, students and others are given a sense of

belonging to something that transcends the present moment.

C. The Petitioners.

Petitioner Tanford is a full professor with tenure at the

University. He has taught at the School of Law since 1979 and is

currently the John Hastings Faculty Fellow.

* The Petition states (at 3) that “[nJo one from outside the Judeo-Christian

tradition has ever been invited” to give the invocation and benediction. There is

no such evidence of record. The record does show that when a “mosque” was built

in Bloomington, the University inquired whether anyone there was interested in

participating. The Petition’s statements (at 6) as to the “only” persons invited

“[ujntil a few years ago” and changes “within the last ten years” are not only

unsupported but also affirmatively contradicted by the record. The Petition’s

statement (at 3) that “instructions” are given is petitioners’ characterization of the

University’s request that the invocation and benediction be uplifting and unifying.

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The Petition erroneously states (at 2) that Professor

Tanford’s “attendance at graduation is not voluntary,” and wrongly

claims (at 7) that the Seventh Circuit erroneously stated the facts

because Tanford is “not free to skip the morning ceremony... .” The

uncontroverted evidence established that law school faculty

members are asked by an Assistant Dean to volunteer to attend the

Commencement Ceremony and “hood” students. One member of the

law school faculty has never volunteered. Attending the Ceremony

and “hooding” students is not required and is not considered to be

part of a professor’s service to the University.

At his deposition, Tanford acknowledged that what he

described as an “obligation” is not backed by discipline if he chooses

not to attend the Commencement Ceremony. He also acknowledged

that the Assistant Dean has no real power over his career. Moreover,

when Tanford declined to attend on a previous occasion, as a matter

principle because of the invocation and benediction, the Assistant

Dean respected that decision. Tanford did not even bother to ask

anyone else, such as the Dean of the law school or the President of the

University, whether a decision to decline as a matter of conscience

would have any effect on his career. Tanford testified that he does not

believe “that anyone in the university would retaliate against me for

a single incident ... There is a tremendous amount of tolerance for

eccentric people in the university.”

* The Petition also states (at 8) that Professor Tanford’s “attendance was not

voluntary, but was ‘part of [his] duties at the law school,”” quoting 883 F. Supp. at

1235. The Petition, however, is quoting the district court’s preliminary injunction

decision, not its final decision. Moreover, even that quotation from the

preliminary injunction decision omits the district court’s notation 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.” Pet. App. a-32 n.2.

Ln

The Petition states (at 2) that Tanford objects “to

nondenominational public prayer on religious grounds, believing

them to trivialize and desanctify communication with his god.” At

his deposition, Tanford said he was not sure he could articulate the

precise reasons why he was offended by the invocation and

benediction. He further testified that (1) “the religious side of me

finds this kind of watered down nonsectarian civic religion Judeo-

Christian tradition prayer offensive”; (2) “on the other hand I think it

is too religious”; and (3) in a “somewhat trivial sense” it is catering

to the “religious right.” Tanford said he believed that everyone

participated in the invocation and benediction simply by being there,

but admitted that “I don’t think that because 7,000 people stood, I

don’t believe for a minute that all 7,000 people believed in the

religious message,” and that “I am certain there are a lot of people

who did not intend by remaining to express agreement with the

message.” On the question of whether the invocation and

benediction would affect people’s religious beliefs, he responded in

part: “Taken in isolation, obviously not. I cannot imagine that a

single one minute watered down prayer is going to change anyone’s

mind on religion.” He thinks, however, that some people are

“affected by the cumulative experience of little things like this.”

Tanford testified that in 1987, the one occasion in 15 years

before his lawsuit when he did attend the Commencement

Ceremony, he went because he was asked to “hood” students. During

that 1987 Ceremony, Tanford absented himself when the invocation

began, returned for the “hooding,” and left again before the

benediction. He said he left before the benediction in 1987 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.”

After attending the Commencement Ceremony in 1987, Tanford

3.

wrote a letter to the editor of the student newspaper “urging the

university community generally, the faculty particularly, to boycott

graduation on the grounds of the inappropriateness of having prayer.”

Petitioner Urbanski is an undergraduate student who entered

the University after the district court’s preliminary injunction

decision and was later added as a plaintiff. He testified that he joined

the lawsuit after reading a pamphlet “looking for people to get

involved with a lawsuit against the university” and contacting

Tanford.

Urbanski is a computer science major, with a possible double

major in cognitive science. He testified that, as a college student, he

is much more independent than in high school and is being

challenged by ideas more than in high school. The college

experience is attractive to him because of the critical thinking and the

diversity of beliefs on a college campus. He said “it’s refreshing to

see, you know, different people, different countries, different belief

systems, even sexual orientations... .”

Urbanski testified that he opposes prayer because he believes

there should be a separation between church and state in a public

institution. He considers it a political issue and also a personal issue

because prayer makes him uncomfortable. He wants the school in a

way to reflect his beliefs which are atheistic. However, he agrees

with the policy of his public high school, which allows students

during their commencement speeches to have a moment of silence or

a short prayer if they choose.

Urbanski said he would go to his Commencement Ceremony

in 1999 and elect to stay during an invocation and benediction,

because it is an inconvenience to leave during parts of the ceremony.

He would do what he usually does when he is in a group of people and

there is a prayer: “I would just sit there quietly until it was over.” He

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testified he would not participate in the prayer and knows there would

be other people in the stadium who would be doing the same thing—

sitting quietly and not participating. He said he could listen without

any impact on his beliefs.°

D. Available Accommodation.

One of the responsibilities of Thomas Bolyard, the Director

of Field Services at the Indiana University Alumni Association in

Bloomington, is to accommodate persons who have special problems

or requests related to the Commencement Ceremony on the

Bloomington campus. Bolyard stated that it would be a relatively

easy matter to accommodate Professor Tanford and others who wish

to be seated in a way that they may inconspicuously enter and exit the

Commencement Ceremony. He further stated that some students and

faculty always arrive late and leave early; that it is common for

students and faculty to “get up and ‘mill around’ for various reasons”

during the ceremony; and that students and faculty frequently leave

their seats to get a drink or to use the restrooms.

REASONS FOR DENYING THE WRIT

I. The Seventh Circuit Considered And Correctly Applied

Lemon.

The Petition argues (at 9-13) that the Seventh Circuit

“ignored” and “fail[ed] to apply” the test of Lemon v. Kurtzman, 403

* The Petition states (at 7) that the Seventh Circuit erred as to Urbanski in stating

that “plaintiffs could simply attend the afternoon ceremonies,” because “Urbanski

is an undergraduate, and the afternoon ceremony was for law students only.”

There is, however, no evidence that Urbanski will be unable to attend a ceremony

or activity held by his own school for its graduating students (or that such

ceremony or activity would include an invocation or benediction).

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U.S. 602 (1971). This is untenable on the face of the Seventh

Circuit’s opinion. The court repeatedly referenced Lemon. Pet. App.

a-6, a-7, a-9. The court expressly ruled that “the invocation and

benediction serve legitimate secular purposes” (the first part of the

Lemon test). Id. at a-9. The court expressly stated that it agreed with

the district court’s analysis of the “effect” and “entanglement” parts

of the Lemon test. Id. at a-10; see id. at a-24 to a-28.

It is equally clear that the decision below is correct on these

issues. The first, “secular purpose,” part of the Lemon test focuses on

the government’s intent or motive for the challenged action.

“Lemon’s ‘purpose’ requirement aims at preventing the relevant

governmental decisionmaker . . . from abandoning neutrality and

acting with the intent of promoting a particular point of view in

religious matters.” Corporation of the Presiding Bishop of the

Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327,

335 (1987) (emphasis added). However, the government’s purpose

need not be “‘exclusively secular.” Lynch v. Donnelly, 465 U.S.

668, 681 n.6 (1984). Rather, a challenged action is invalid on this

ground only if the government was “motivated wholly by religious

considerations.” Lynch, 465 U.S. at 680. Accord, e.g., Bowen v.

Kendrick, 487 U.S. 589, 602 (1988); Wallace v. Jaffree, 472 U.S. 38,

56 (1985). Stated differently, Lemon’s purpose test “does not mean

that the law’s purpose must be unrelated to religion—that would

amount to a requirement ‘that the government show a callous

indifference to religious groups,’ . . . and the Establishment Clause

has never been so interpreted.” Amos, 483 U.S. at 335 (citation

omitted).

The uncontroverted evidence established that Indiana

University’s purpose is not to sponsor any particular religion, or to

endorse religion in general. Rather, its purposes for the invocation

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and benediction are to solemnize the Commencement Ceremony and

continue the University’s 155-year tradition. These are legitimate

secular purposes.

[Sjuch governmental “acknowledgements” of

religion as legislative prayers ..., government

declaration of Thanksgiving as a public holiday,

printing “In God We Trust” on coins, and opening

court sessions with “God save the United States and

this honorable court” . . . serve . . . the legitimate

secular purposes of solemnizing public occasions,

expressing confidence in the future, and encouraging

the recognition of what is worthy of appreciation in

society.

Lynch, 465 U.S. at 692-93 (O’Conner, J., concurring). In the context _

of a university’s graduation ceremony, a brief and nonsectarian

invocation and benediction are merely another type of such

“ceremonial deism,” which does not violate the Establishment

Clause. See County of Allegheny v. American Civil Liberties Union,

Greater Pittsburgh Chapter, 492 U.S. 573, 602-03 (1989); id. at 596

n.46 (plurality opinion); id. at 630 (O’Conner, J., concurring in part

and in judgment); Engle v. Vitale, 370 U.S. 421, 435 n.21 (1962).

Other examples include Presidential Proclamations calling for

prayer, Lynch, 465 U.S. at 675-76 & nn.2-3; prayer at Presidential

inaugurations, County of Allegheny, 492 U.S. at 671-72 n.9

(Kennedy, J., concurring in judgment in part and dissenting in part);

and federal statutes providing for a “National Day of Prayer,” Lynch,

465 U.S. at 677, for the words “under God” in the Pledge of

Allegiance, Wallace, 472 U.S. at 78 n.5 (O’Conner, J., concurring in

judgment), and for the words “In God is our Trust” in the National

Anthem, Engle, 370 U.S. at 449 (Stewart, J., dissenting).

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The second Lemon factor—whether the primary effect of the

challenged action is to advance or inhibit religion—is to be applied in

a practical and realistic manner. The issue is not whether there is any

remote or incidental “advancement.” As this Court has said, its

“precedents plainly contemplate that on occasion some advancement

of religion will result from governmental action.” Lynch, 465 U.S. at

683. See also, e.g., Bowen, 487 U.S. at 607.

In Lynch, the Court held that a city’s inclusion of a nativity

scene in its Christmas display did not impermissibly “advance”

religion under the Lemon test:

[T]o conclude that the primary effect of including

the creche is to advance religion in violation of the

Establishment Clause would require that we view it

as more beneficial to and more an endorsement of

religion, for example, than expenditure of large

sums of public money for textbooks supplied

throughout the country to students attending church-

sponsored schools, . . . expenditure of public funds

for transportation of students to church-sponsored

schools, . . . federal grants for college buildings of

church-sponsored institutions of higher education

combining secular and religious education, ...

noncategorical grants to church-sponsored colleges

and universities, ... and ... tax exemptions for

church properties... . It would also require that we

view it as more of an endorsement of religion than

... Sunday Closing Laws[,] ... [a] release time

program for religious training[,] ... and ...

legislative prayers ....

We are unable to discern a greater aid to

religion deriving from inclusion of the creche than

from these benefits and endorsements previously

held not violative of the Establishment Clause.

465 U.S. at 681-82 (citations and footnotes omitted).

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The same is true of the invocation and benediction here. It is

not reasonable to contend that these few moments during a once-a-

year event, at a major university devoted to scholarship, criticism and

free-ranging pursuit of all sorts of ideas, have a greater effect in

“advancing” religion than the types of governmental actions

surveyed in the above-quoted passage. As in Lynch, “whatever

benefit” the invocation and benediction may be to one faith or to all

religions is at most “indireci, :mote, and incidental.” Jd. at 683.

The third Lemon factor, whether the challenged action

creates “excessive entanglement” between church and state, is not a

serious issue. The University’s role is limited to inviting a member

of the clergy on a rotating basis—from among those who are familiar

with the University and its diverse community—and expressing the

desire that the message be uplifting and unifying. As in Lynch,

“[t]here is nothing here . . . like the ‘comprehensive, discriminating,

and continuing state surveillance’ or the ‘enduring entanglement’

present in Lemon... .” 465 U.S. at 684. See also, e.g., Mueller v.

Allen, 463 U.S. 388, 403 (1983) (government monitoring of books

and instructional materials for religious content to determine

eligibility for tax deduction does not constitute excessive

entanglement); Bowen, 487 U.S. at 616-17 (similar—grant

monitoring); Agostini v. Felton, _U.S.__, 1997 WL 338583 at

*19-20 (1997) (“administrative cooperation” between public

officials and parochial schools, and “monthly visits of public

supervisors,” does not create excessive entanglement).

Il. The Seventh Circuit Properly Considered Marsh And

Lee.

The Petition argues (at 13-16, 25-27) that the Seventh Circuit

erred in “app[lying]” Marsh v. Chambers, 463 U.S. 783 (1983), and

3

that its decision “is not consistent” with Lee v. Weisman, 505 U.S.

577 (1992). These arguments misconstrue both the Seventh Circuit's

decision and those Supreme Court precedents.

As an initial matter, the Seventh Circuit properly considered

both Lee and Marsh in resolving this case. In their Brief of

Appellants (at 12), the petitioners explicitly represented to the

Seventh Circuit that “it would not be improper to view the decision

in this case as turning on . .. whether [the facts here are] more like the

graduation prayer in Lee or the legislative prayer in Marsh.”

Moreover, the court necessarily had to consider whether there was

“coercion” under the standards of Lee.

Petitioners repeatedly misconstrue the decision in Lee. For

example, they say (Pet. at 19) that Lee’s discussion of the role of the

school principal in “direct[ing] and controll[ing] the content of the

prayers” shows there is “excessive entanglement” here. Lee,

however, was not addressing “entanglement” and, indeed, did not

apply the Lemon test at all. 505 U.S. at 586-87. Rather, the majority

in Lee concluded that the role of the school officials contriduted to the

coercive effect of graduation prayers in the secondary school context,

as those officials’ “effort to monitor prayer will be perceived by the

students as inducing a participation they might otherwise reject.” Jd.

at 590.

More generally, in finding that the graduation prayer in Lee

violated the Establishment Clause, Justice Kennedy’s opinion for the

Court focused squarely on coercion, and rested on a detailed analysis

of the secondary school setting, the immaturity of adolescents, and

the peer, public and school official pressures to which young persons

of that age and in that context are subjected. Id. at 592-98. In addition

to the role of the school official in the prayer, those officials’

“supervision and control” of the graduation ceremony itself “place[d]

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public pressure, as well as peer pressure, on attending students to

stand as a group or, at least, maintain a respectful silence. ... This

pressure, though subtle and indirect, can be as real as any overt

compulsion.” Jd. at 593. Hence, the Court concluded, a “reasonable”

high school student “in this milieu could believe that the group

exercise signified her own participation or approval of it.” Id.

(emphasis added). Given her reasonable belief in this context that she

was signifying participation or approval, the student was put “in the

dilemma of participating . . . or protesting.” Jd. The Court reasoned

that “primary and secondary school children” could not

constitutionally be placed “in this position,” emphasizing the force of

peer pressure among “adolescents” which made protest an unrealistic

alternative. Id. at 593-94. Finally, although attendance at graduation

was not required in Lee, the student did not have “a real choice” to

avoid the dilemma because “in our society and in our culture high

school graduation is one of life’s most significant occasions,” and

thus “a student is not free to absent herself from the graduation

exercise in any real sense of the word ‘voluntary’... .” Jd. at 595.

As the district court held (Pet. App. a-18 to a-24) and the

Seventh Circuit affirmed (id. at a-7 to a-9), none of the factors

creating impermissible coercion in Lee, let alone all of them, are

present in the university context here. The plaintiffs’ own testimony

established that they did not believe that standing or remaining silent

“signified . . . participation or approval” of the prayer. Nor could they

“reasonably” believe the contrary. The Commencement Ceremony

is in a stadium with tens of thousands of people who are members of

a truly international university community, drawn from all manner of

backgrounds, ethnic groups, religions and non-religions. No

reasonably objective person could draw any conclusion about the

participation or approval of someone who simply stands and remains

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silent during an invocation and benediction that open and close the

ceremony.

Similarly, the plaintiffs’ own testimony established that they

are not like the adolescent student in Lee, for whom social convention

and peer pressure made “protest” an unacceptable alternative. Nor

would a contrary conclusion be reasonable. Moreover, a person who

chooses to remain seated during the invocation and benediction

would scarcely be noticed, let alone cause a stir, in a football stadium

filled with thousands of people. Alternatively, a “protestor” can be

accommodated if he or she wishes to avoid these parts of the

ceremony altogether.’

The Petition (at 22-24) also errs in claiming that the Seventh

Circuit’s “de minimus” statement contravenes Lee. The Seventh

Circuit’s statement was addressing the “effect” part of the Lemon

test. See Pet. App. a-10. As noted above, this Court has repeatedly

held under that test that “indirect, remote, and incidental”

advancement effects do not violate the Establishment Clause. Lee,

by contrast, was not applying the Lemon test but rather a coercion

analysis. And even in that context, the Court emphasized that the

issue “is of necessity one of line-drawing, of determining at what

point a dissenter’s rights of religious freedom are infringed by the

State.” 505 U.S. at 598. Lee also reiterated that:

7 There are, of course, many other differences as well. For example, the

University-wide graduation ceremony does not have the same social importance

creating compulsion to attend, and approximately one-third of all graduates

chouse not to do so.

-16-

The First Amendment does not prohibit practices

which by any realistic measure create none of the

dangers which it is designed to prevent and which do

not so directly or substantially involve the state in

religious exercises or in the favoring of religion as to

have meaningful and practical impact. It is true of

course that great consequences can grow from small

beginnings, but the measure of constitutional

adjudication is the ability and willingness to

distinguish between real threat and mere shadow.

Id., quoting School Dist. of Abington v. Schempp, 374 U.S. 203, 308

(1963) (Goldberg, J., concurring). f

Petitioners also err in repeatedly proclaiming “circuit

conflicts” based on decisions involving prayer in primary and

secondary schools. Pet. at 12-13, 15-16, 18, 21-22, 24, 26-27. As

both courts below held, this case, which involves a university

ceremony, is fundamentally different.

The Supreme Court’s precedents repeatedly recognize as

much. In Lee, for example, the Court explicitly stated that its

“controlling precedents” were those involving “prayer and religious

exercise in primary and secondary public schools... .” 505 U.S. at

586. See also, e.g. id. at 592 (citing precedents observing

“heightened concerns with protecting freedom of conscience from

subtle coercive pressure in the elementary and secondary public

schools”). At the same time, this Court’s religion cases have

repeatedly recognized the substantial difference, in impressionability

and maturity, between primary and secondary students on the one

hand and university students on the other. Pet. App. a-9, quoting

Widmar v. Vicent, 454 U.S. 263, 274 n.14 (1981); Pet. App. a-20 to

a-21, quoting Tilton v. Richardson, 403 U.S. 672, 686 (1971); see

-17-

also, e.g., Edwards v. Aguillard, 482 U.S. 578, 584 n.5 (1987); id. at

607 n.7 (Powell, J., concurring); Roemer v. Board of Public Works of

Maryland, 426 U.S. 736, 765 (plurality opinion) (1976).'

Petitioners also err with respect to Marsh v. Chambers (Pet.

at 13-15). Initially, they are plainly wrong in contending that the

Seventh Circuit “appl[ied] the ‘tradition’ exception” of Marsh” to the

exclusion of Lemon. The court mentioned Marsh in a single sentence

in the course of addressing the “secular purpose” part of the Lemon

test. Pet. App. a-9. Moreover, the relevance of Marsh is not so

limited as petitioners contend.

Lee extensively addressed and distinguished the legislative

prayers in Marsh precisely on the ground of the coercive effect of

prayer in the secondary school context, “in which the student was left

with no alternative but to submit.” 505 U.S. at 596-97. The

differences “between the facts of Marsh” and those in Lee were

dispositive, and the Court explicitly concluded that “[oJur decisions

in Engle v. Vitale. . . and School Dist. of Abbington v. Schempp . . .

require us to distinguish the public school context [from the

legislative prayers in Marsh]. Id. at 597. Moreover, other opinions

have pointed to the legislative prayers in Marsh as one example of

non-coercive ceremonial “acknowledgments” of religion which do

* Cf Walloce, 472 U.S. at 81 (O’Conner, J., concurring in judgment):

At the very least, Presidential Proclamations [calling for public prayers]

are distinguishable from school prayer in that they are received in a

noncoercive setting and are primarily directed at adults, who presumably

are not readily susceptible to unwilling religious indoctrination. This

Court’s decisions have recognized a distinction when government-

sponsored religious exercises are directed at impressionable children who

are required to attend school, for then government endorsement is much

more likely to result in coerced religious beliefs. See, e.g. Marsh v.

Chambers . . . [and] Tilton v. Richardson .. . .

-18-

not violate the Establishment Clause. E.g., County of Allegheny, 492

U.S. at 596 n.46 (plurality opinion); id. at 630-31 (O’Conner, J.,

concurring in part and in judgment); id. at 662-63 (Kennedy, J.,

concurring in judgment in part and dissenting in part).

Finally, although petitioners would confine the legislative

prayers upheld in Marsh to a “unique exception” based on history

(Pet. at 14-15), the opinion in Marsh explained that the significance

of “history” was the light it shed on the “intent?” of the Framers of the

First Amendment. 463 U.S. at 790 (emphasis added).

It can hardly be thought that in the same week

Members of the First Congress voted to appoint and

pay a chaplain for each House and also voted to

approve the draft of the First Amendment for

submission to the states, they intended the

Establishment Clause of the Amendment to forbid

what they had just declared acceptable.

Id. The Court added that “[ijn applying the First Amendment to the

states through the Fourteenth Amendment, . . . it would be

incongruous to interpret that Clause as imposing more stringent First

Amendment limits on the states than the draftsmen imposed on the

Federal Government.” Jd. at 790-91.

Under a coherent view of “original intent” as a mode of

constitutional interpretation, it cannot be thought that the same

draftsmen—who viewed prayer by government-paid clergy to begin

every session day of our national legislature as consistent with the

Establishment Clause—would have viewed differently a brief

invocation and benediction, by unpaid clergy invited on a rotating

basis, during a once-a-year mass ceremony at a State university. To

the contrary, those Framers of the Establishment Clause “did not

consider opening prayers as a proselytizing activity or as

-19-

symbolically placing the government’s ‘official seal of approval on

one religious view’ ....” Jd. at 792 (citations omitted). Moreover,

under any realistic view of the matter, the invocation and benediction

here are far less problematic under the Establishment Clause than

daily prayers at the heart of government in our Nation’s capital.’

Ill. Petitioners’ Other Contentions Are Also Wrong.

Petitioners’ assertions that prayer may never be used to

solemnize public occasions (Pet. at 20-22) cannot be reconciled with

this Court’s opinions. See Part I, supra. Petitioners’ authority, Lee,

held to the contrary only in the secondary school setting and because

of the coercive effects of prayer there. By contrast, and as in the cases

of legislative, presidential and other prayers, no such coercion is

presented here. Indeed, the familiar “God save the United States and

this Honorable Court” is an invocation and a prayer. Engel, 370 U.S.

at 439 (Douglas, J., concurring); Lee, 505 U.S. at 635 (Scalia, J.,

dissenting). The meaningful differences between that judicial

invocation and Indiana University’s invocation and benediction cut

the other way. The judicial invocation occurs every session day of

court (rather than once a year) and in a courtroom with litigants

° Cf. County of Allegheny, 492 U.S. at 670 (Kennedy, J., concurring in judgment in

part and dissenting in part) (footnote omitted):

Marsh stands for the proposition, not that specific practices common in 1791

are an exception to the otherwise broad sweep of the Establishment Clause,

but rather that the meaning of the Clause is to be determined by reference to

historical practices and understandings. Whatever test we choose to apply

must permit not only legitimate practices two centuries old but also any other

practices with no greater potential for an establishment of religion.

-20-

present (rather than in a stadium filled with tens of thousands of

people)."°

Petitioners also err in criticizing the Seventh Circuit’s

consideration of the fact that the invocation and benediction are

“nonsectarian” (Pet. at 16-18). While that fact alone is not

dispositive of the issue—and the Seventh Circuit did not purport to

say otherwise—the nonsectarian nature of a prayer, display or other

reference to a deity is clearly relevant to whether a challenged

expression violates the Establishment Clause. See, e.g., County of

Allegheny, 492 U.S. at 602-03. Indeed, the sectarian nature of the

expression (as well as other factors such as its duration and

pervasiveness) were crucial to the “city seal” decisions that

petitioners wrongly claim conflict with the decision here. See, e.g.,

Robinson v. City of Edmond, 68 F.3d 1226, 1230-33 (10th Cir. 1995)

(following Harris v. City of Zion, 927 F.2d 1401 (7th Cir. 1991), cert.

denied, 50S U.S. 1218 (1992)); compare, Gaylor v. United States, 74

F.3d214, 216-17 (10th Cir.) (federal statutes establishing “In God we

trust” as the national motto and providing for its inscription on all

coins and currency do not violate the Establishment Clause), cert.

denied, _U.S.__, 116 S. Ct. 1830 (1996).

"° Petitioners’ “solemnization” contention also apparently argues (Pet. at 21-22) a

sort of “available alternative means” analysis. A majority of the Supreme Court

has twice rejected such a test in Establishment Clause cases. Lynch, 465 U.S. at

681 n.7; County of Allegheny, 492 U.S. at 636-37 (O’Conner, J., concurring in part

and in judgment); id. at 676 & n.12 (Kennedy, J., joined by Rehnquist, C.J., White

and Scalia, JJ., concurring in judgment in part and dissenting in part). Indeed, none

of the forms of “ceremonial deism” noted above could survive such a test, whereas

this Court has “avoided drawing lines which entirely sweep away all government

recognition and acknowledgement of the role of religion in the lives of our citizens

....-” Id. at 623 (O’Conner, J., concurring in part and in judgment).

-21-

The nonsectarian nature of an expression is also particularly

significant under the “endorsement” standard employed by Justice

O’Conner, which asks whether the challenged expression

communicates the government’s disapproval of other religious

choices. County of Allegeny, 492 U.S. at 631 (O’Conner, J.,

concurring in part and in judgment). This endorsement standard

“focuses upon the perception of a reasonable, informed observer,”

Capital Square Review and Advisory Board v. Pinette, 515 U.S. 753,

115 S. Ct. 2440, 2452 (1995) (O’Conner, J., concurring in part and in

judgment), who “must be deemed aware of the history and context of

the community and forum in which the religious display appears,” id.

at 2455. Here, such a reasonable and informed observer would be

aware, inter alia, of the brief and nonsectarian nature of the

invocation and benediction, of the University’s 155-year tradition,

and of the wide-ranging scholarship, criticism and advocation of all

sorts of ideas in this university “community” and “forum.” Such an

observer would not perceive the invocation and benediction during

its Commencement Ceremony to be disapproval by Indiana

University of other religious choices.''

" Petitioners’ own affiant stated, inter alia:

..- Indiana University strives to provide a learning and living environment

that honors and affirms the broadest diversity of religious opinions among

its students, faculty and staff. My experiences with many segments of the

University structure lead me to view it as operating from a truly secular or

Over 2,200 students from outside the United States are enrolled at 1.U. Its

faculty reflects the importation of scholars from many nations. Among this

international contingent are those who hold to cultural and religious

traditions, ethnics and values quite outside the scope of the Euro-American

dominant cultural and religious mores found on this campus.

Affidavit of Robert E. Turner Ff Ill, VI.

22.

CONCLUSION

Under every standard employed by majorities of the

Supreme Court, the inquiry in an Establishment Clause case is

sensitive and fact-specific. Under the Lemon test, “[i}n each case, the

inquiry calls for line-drawing; no fixed, per se rule can be framed.”

Lynch, 465 U.S. at 678. Similarly under a coercion approach, the

inquiry is “delicate and fact-sensitive” and “of necessity one of line-

drawing ....” Lee, 505 U.S. at 597, 598. Likewise under the

endorsement standard, “[e}very government practice must be judged

in its unique circumstances,” Lynch, 465 U.S. at 694 (O’Conner, J.,

concurring), which “requires courts to draw lines, sometimes quite

fine, based on the particular facts of each case,” Rosenberger v.

Rector and Visitors of the University of Virginia, 515 U.S. 819, 115

S. Ct. 2510, 2526 (1995) (O’Conner, J., concurring). None of these

standards require “relentless and all-persuasive” efforts “to exclude

religion from every aspect of public life... .” Lee, 505 U.S. at 598.

Accord, Lynch, 465 U.S. at 673-75; id. at 692-93 (O’Conner, J.,

concurring).

Both courts below simply applied the pertinent and fact-

sensitive standards to the facts presented, and both courts arrived at

the same conclusion. Under any realistic view, petitioners are not

“coerced to participate” in a religious exercise. There is no evidence,

and it is not credibly to be believed, that Indiana University’s “real”

purpose or intent is to promote religion. From a reasonable and

objective standpoint, which considers the history and circumstances

of the Commencement Ceremony as well as the broader University

context in which it occurs, the invocation and benediction are not a

disapproval of other religious choices. As a practical matter, any

“advancement” of religion from this small part of a once-a-year event

is negligible.

23-

The decision below conforms with the decisions of this

Court, does not conflict with decisions of any other federal circuit,

and does not warrant further review. The Petition should be denied.

Respectfully submitted,

Stanley C. Fickle

Counsel of Record

for Respondents

Robert P. Johnstone

BARNES & THORNBURG

11 South Meridian Street

Indianapolis, Indiana 46204

Telephone: (317) 638-1313

Dorothy J. Frapwell

University Counsel

Michael A. Klein

Associate University Counsel

Bryan Hall 211

INDIANA UNIVERSITY

Bloomington, Indiana 47405

Telephone: (812) 855-9739