James A. Tanford, Kimberly J. MacDonald David Suess and Joseph Anthony Urbanski 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

Citation: 104 F.3d 982Docket: 96-3053

Court: Court of Appeals for the Seventh Circuit; February 24, 1997; Federal Appellate Court

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Three plaintiffs—James A. Tanford, Kimberly J. MacDonald, and David Suess—filed a lawsuit against Myles Brand and Kenneth R.R. Gros Louis, seeking to prevent the invocation and benediction during Indiana University's 1995 Commencement Ceremony. After an initial request for a preliminary injunction was denied, Joseph Anthony Urbanski was added as a plaintiff. The district court ultimately ruled in favor of the defendants, denying the plaintiffs' summary judgment motion.

The commencement activities began on May 5, 1995, with a university-wide ceremony held the following day, attended by approximately 30,000 to 35,000 people, including about 5,000 of the 7,400 graduating students. The ceremony featured a nonsectarian invocation and benediction, along with various traditional elements such as the national anthem and the conferral of degrees. Nonattendance at the ceremony posed no penalties, and participation was voluntary.

The invocation and benediction, a tradition at the University since 1840, have been delivered by local religious leaders, often referring to a deity. In 1995, Father Ralph W. Sims offered the prayers, while previous years featured leaders from different religious backgrounds. Notably, most attendees remained seated during these prayers, indicating a lack of uniform participation.

University President Brand clarified that the ceremony is intended to serve secular purposes, emphasizing its solemnity and dignity, rather than endorsing any religion. Four plaintiffs are involved:

1. **Professor Tanford**: A tenured law professor at age 45, he has been at the University since 1979, attending only one Commencement Ceremony (1987) to hood students. He left during the invocation and returned for hooding, believing that the religious messages of the invocation and benediction did not reflect the views of all attendees. In the late 1980s, he urged a boycott of graduations due to the presence of prayer.

2. **MacDonald**: A third-year law student expected to graduate in May 1995, she has a Bachelor’s degree from Indiana University. She felt uncomfortable participating in ceremonies led by individuals of different faiths and expressed that an invocation and benediction in 1995 would offend her conscience. Planning to attend the law school Recognition Ceremony, she remained uncertain about attending the stadium Commencement if religious elements were included, despite family expectations.

3. **Suess**: A first-year law student, he is Jewish and finds nonsectarian invocations and benedictions offensive, perceiving them as proselytizing. He had previously attended a commencement invocation at the University of Chicago without participation. He was informed about the 1995 law school activities and might attend the morning Commencement Ceremony but did not confirm his attendance after the preliminary injunction was denied. He intended to join the law school Recognition Ceremony, which traditionally lacks religious elements.

4. **Urbanski**: An undergraduate who joined as a plaintiff post-preliminary injunction denial, he opposes graduation prayer, advocating for separation of church and state in public institutions. Although he finds prayer uncomfortable, he accepts moments of silence or short prayers in public high schools. He plans to attend the 1999 Commencement Ceremony and will remain during the invocation and benediction, sitting quietly but not participating, asserting that his beliefs would not be affected.

Thomas Bolyard, Director of University Field Services, indicated that accommodating individuals with special requests for the Commencement Ceremony, including plaintiff Tanford, would be straightforward, as attendees often move around freely during the event. In May 1995, the district court denied a preliminary injunction, and after an amended complaint and answer, a motion for summary judgment by the plaintiffs was denied in July 1996. Chief Judge Barker cited the Supreme Court cases Lee v. Weisman and Lemon v. Kurtzman to underscore constitutional protections against government coercion in religion and the necessity for state actions to have a secular purpose without excessive entanglement with religion. The district court determined that Lee was not applicable as the plaintiffs were adults who were less likely to be influenced by peer pressure, evidenced by the significant number of graduates who opted out of the morning ceremony. It noted that plaintiffs could attend afternoon ceremonies without religious components. Furthermore, the invocation and benediction did not violate constitutional standards, as they were intended to solemnize the ceremony, continued a long-standing university tradition, and did not endorse a specific religion. The cleric was instructed to deliver a general uplifting message, resulting in minimal interaction between the university and clergy. The discussion also references Lee v. Weisman, where the Supreme Court found that students were effectively coerced into participating in state-sponsored religious activities at public school graduations, highlighting the extent of government involvement in religious exercises.

Justice Kennedy's majority opinion in *Lee* highlighted the need to protect freedom of conscience from coercive pressures in public schools, particularly emphasizing that students should not be compelled to participate in religious exercises. In contrast, the current situation lacks such coercion; many students intentionally chose not to attend or participated minimally in the stadium invocations. Unlike in *Lee*, where attendance was mandatory, students here were free to ignore the cleric's remarks, with most remaining seated. 

The district court found that *Lee* did not necessitate the invalidation of the university's practices. The invocation and benediction at the university’s commencements, upheld over 155 years, serve a secular purpose of solemnizing events rather than endorsing specific religious beliefs. The practices align with *Marsh v. Chambers*, which recognized ceremonial invocations as permissible acknowledgments of widely held beliefs. 

Additionally, the court referenced *Lemon v. Kurtzman* and distinguished it from the current case, as it involved financial aid to religious institutions, unlike the non-denominational invocations here. The court concluded that the university's brief, non-sectarian invocations do not endorse or disapprove of religion nor create excessive church-state entanglement. Any potential advancement of religion is minimal. The judgment was affirmed. The included benediction exemplified a unifying, non-sectarian approach to spirituality.