Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 95 492 C B/S Sarah Evans Barker, Chief Judge.
Before CUMMINGS, HARLINGTON WOOD, JR., and EASTERBROOK, Circuit Judges.
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 deity. *fn1 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 Presbyterian 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:
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 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. ...