at this port. i'm looking forward to working with you. god bless you. god bless the united states of america. [applause] [captions copyright national cable satellite corp. 2013] [captioning performed by national captioning institute] waxy discussion on iran, and federal reserve chairman ben bernanke, lawrence summers, and others discover public policy after economic crises. the supreme court heard oral arguments on the practice of opening government meetings with a prayer. greece versus of galloway.

this examines whether there should be different roles from local council meetings were citizens come to ask for official action. this is about one hour. >> we'll hear argument first this morning in case 12-696, the town of greece v. galloway. mr. hungar. >> thank you, mr. chief justice, and may it please the court -- the court of appeals correctly held that the legislative prayers at issue in this case were not offensive in the way identified as problematic in marsh, but the court then committed legal error by engrafting the endorsement test onto marsh as a new barrier to the practice of legislative prayer. >> mr. hungar, i'm wondering what you would think of the following: suppose that as we began this session of the court, the chief justice had called a minister up to the front of the courtroom, facing the lawyers, maybe the parties, maybe the spectators. and the minister had asked everyone to stand and to bow

their heads in prayer and the minister said the following: he said, we acknowledge the saving sacrifice of jesus christ on the cross. we draw strength from his resurrection. blessed are you who has raised up the lord jesus. you who will raise us in our turn and put us by his side. the members of the court who had stood responded amen, made the sign of the cross, and the chief justice then called your case. would that be permissible? >> i don't think so, your honor. and, obviously, this case doesn't present that question because what we have here is a case of legislative prayer in the marsh doctrine, which recognizes that the history of this country from its very foundations and founding, recognize the propriety of legislative prayer of the type that was conducted here. >> well, the question >> the extension just between the legislature and any other official proceeding; is that correct? >> well, clearly, marsh involves

legislative prayer, the tradition that we rely on 20 involves legislative prayer, and this case involves legislative prayer. whether -- what rule might apply in other contexts would depend on the context. >> suppose i ask the exact same question, same kinds of statements, same sort of context, except it's not in a courtroom. instead, it's in a congressional hearing room. maybe it's a confirmation hearing, maybe it's an investigatory hearing of some kind, and that a person is sitting at a table in front of the members of a committee, ready to testify, ready to give his testimony in support of his nomination. the minister says the exact same thing. >> i think that's a -- that's a closer question because of the congressional history, but, of course, at least as far as i'm aware, they have 0 this history as it applies to the legislative body as a whole, not to committees, but it would be a different question. one, obviously, important distinguishing factor there, in addition to the fact that it's

not the legislative body as a whole >> we should -- we should >> is that people are compelled to attend and testify under oath, which is a different situation from the one here. >> well, why >> we should assume -- to, to make it parallel to what occurred here that the next day before the same committee a muslim would lead the invocation and the day after that an orthodox jew. i mean >> yes, your honor. >> it makes a difference whether it's just one -- one denomination that is being used as -- as chaplain or open to various denominations. >> that's correct, your honor. that's why we believe this case is actually an easier case than marsh because in marsh, there was a paid chaplain from the same denomination for 16 years. >> but the question, mr. hungar >> suppose you are correct, mr. hungar, for 11 years the prayers sounded almost exclusively like the ones that i read, and one year on four occasions, there

was some attempts to vary it up, to have a baha'i minister or a a wiccan, but for the most part, not out of any malice or anything like that, but because this is what the people in this community knew and were familiar with and what most of the ministers were, most of the prayers sounded like this. >> well, no. i mean, it's clearly not correct that most of the prayers sounded like the one you just read. >> but your position is that wouldn't matter, as i understand, because you have you have -- you have two limitations, proselytizing and disparaging. and -- but i think justice kagan's question just set place place limitations. one could read your brief and say, well, it doesn't matter; it could be an executive body, it could be a court, it could be a town meeting, a school board, a

zoning board, a utilities board. that's -- is this case about prayer at the beginning of a legislative session or is it about prayer in all three branches of government? >> this case is about prayer at the beginning of a legislative session. that's exactly what the meetings at issue here are -- are about. that's what the board of the town of greece is. in fact, respondents try to argue that this is somehow what they call coercive because there are public hearings that are held. but the public hearings are held at least 30 minutes after the prayer and anyone coming for the purpose of the public hearing can easily show up after the prayer if they don't want to be there. >> why -- why was it that you so promptly answered justice kagan's question to the effect that this would be a violation? what -- why would there be a violation in the instance she put? >> i'm sorry. which instance, your honor? >> the first question justice kagan asked you, the hypothetical about the prayer in this court.

you seemed readily to agree that that would be a first amendment violation. why? >> well, perhaps i conceded too much, but i think the important distinction is between the -- both the judicial context and the legislative context on the one hand and the -- the absence of a of a comparable history that shows that it did not >> well, is it -- is it simply history that makes -- there's no rational explanation? it's just a historical aberration? >> no, it's not -- it's not a question of historical aberration. it's a question of -- >> well, what's -- what's the justification for the distinction? >> it's a question of what the establishment clause has understood, both at the time and throughout history, to forbid and not to forbid. the judiciary is different than a legislature. legislatures can be partisan, the judiciary should not be. people are compelled to testify under oath. >> but you -- but you -- you had no problem, mr. hungar, with the marshal's announcement at the -- at the beginning of this session. god save the united states and this honorable court. there -- there are many people who don't believe in god.

>> that's correct, your honor. and clearly >> so that's ok? >> yes. >> why -- why is that ok? >> whether -- if -- perhaps i misunderstood the hypothetical. if the hypothetical is as you described with a different minister, with -- with 0 an open process, a nondiscriminatory process like the one we have here, i think it would be a much closer case than this one, but it might be constitutional. but whether that case is constitutional or not, this case is far from the constitutional line, further from the constitutional line than the state legislature's practice in marsh. because there, nebraska had one chaplain from one denomination for 16 years and yet, that was constitutionally permissible, and his prayers were not distinguishable in content from the prayers at issue here during the time that was relevant to the case. >> would it make a difference in your analysis if instead of, as i understand the hypothetical, there was a point of saying, all rise or something of that sort? would it make a difference if the hypothetical justice kagan posed were the same except people weren't told to rise or invited to rise or, in fact, were told to stay seated, something like that, so there

would be no indication of who was participating in the prayer? is that a -- is that a ground of distinction that you're willing to accept or not? >> i don't think that is constitutionally significant, unless -- i mean, it might 0 be different if people are compelled to stand, but whether they are or not -- i mean, in the marsh case itself, senator chambers testified that the practice in the nebraska legislature was for people to stand and he felt coerced to stand. because when he was there -- he tried to avoid it -- but when he was there, he felt he needed to stand because everybody else was doing it and he needed to have dealings with these people as a fellow legislator. the court, nonetheless, held that he's an adult and he -- he is expected to be able to disagree with things that he disagrees with and that is not a constitutional violation. >> i wonder how far you can carry the -- your historical argument and whether some of these things are properly regarded as more historical artifacts, right? i mean, our motto is "in god we trust," right?

that's the motto. it's been that for a long time, right? >> yes, sir. >> but wouldn't we look at it differently if there were -- suddenly if there were a proposal today for the first time, to say let's adopt a motto "in god we trust"? would we view that the same way simply because it's -- in other words, the 0 history doesn't make it clear that a particular practice is ok going on in the future. it means, well, this is what they've done -- they have done, so we're not going to go back and revisit it. just like we're not going to go back and take the cross out of every city seal that's been there since, you know, 1800. but it doesn't mean that it would be ok to adopt a seal today that would have a cross in it, does it? >> not necessarily. but -- but i think history is clearly important to the establishment clause analysis under this court's precedence in two significant respects, both of which apply here, one of which might not apply in your -- with respect to your hypothetical. the first being the history shows us that the practice of legislative prayer, just like

the motto, has not, in fact, led to an establishment and, therefore, we can be confident it is not in danger of doing so. and secondly, the history of legislative prayer, unlike your hypothetical, goes back to the very framing of the first amendment. the fact that -- then this is what the court said in marsh -- the fact that at the very time the first congress was writing and sending the -- the first amendment out to the states to be ratified, they adopted the practice of having a congressional chaplain. and the congressional chaplain the record -- the historical record is clear -- gave prayers that were almost exclusively sectarian, as respondents define that word. >> i don't really understand your -- your answer. how can it be that if the practice existed in the past, it was constitutional? was it constitutional in the past? >> yes, your honor. >> if it was constitutional in the past, why -- why would it be unconstitutional if the same thing is done today, even without any past parallel practice.

that's a nice alliteration. is past parallel practice essential? >> i think this court's precedents have also indicated, at least in some cases, that if if a practice is constitutional, as we know it to be the case because of the fact that it has been understood to be constitutional and consistent with our religion clauses from the founding, other practices that have no greater impact, no greater tendency to establish religion, are equally constitutional. and we believe that is an appropriate doctrine. >> is there -- is there any constitutional historical practice with respect to this 0 hybrid body? it's not simply a legislature. it has a number of administrative functions. sometimes it convenes as a town meeting. sometimes it entertains zoning applications. is there a history for that kind of hybrid body, as there is for the kind of legislature we had

in nebraska or our congress? >> yes, your honor, in two respects. first of all, the becket fund amicus brief identifies various examples of -- of municipal government prayer over the course of our founding, which is over the course of our history, which is not surprising given this -- the legislative practice at the state and federal level as well. and secondly, congress for much of its -- of much of our history entertained private bills, which would be the equivalent in terms of legislative or non-purely legislative functions you're talking about, with what the town of greece does here. >> well, if we had a -- if we had a series of cases, what -- what is a -- a utility rate- making board would come to the supreme court. we say, well, it's enough like a legislative that it's like marsh. but i don't think the public would understand that. >> well, your honor, whatever whatever line might be drawn between non-legislative bodies

and legislative bodies, what we are talking about here is a legislative meeting of a legislative body, and it would be -- it would be incongruous, as this court said in marsh, if congress could have legislative prayers and the states couldn't. it would be equally incongruous >> well, the essence of the argument is we've always done it this way, which has some -- some force to it. but it seems to me that your argument begins and ends there. >> no, your honor. i mean, as we -- as we said in our brief, the principles that undergird the establishment clause are equally consistent with the position we're advancing here. as the -- as your opinion in the county of allegheny case indicates, the fundamental -- the core of establishment clause concern is coercion or conduct that is so extreme that it leads to the establishment of a religion because it is putting the government squarely behind one faith to the exclusion of others, and that's clearly not not what's going on here. >> may i ask you about the individual plaintiffs here. and what do we know about them? they obviously have appeared at proceedings and they object to the proceedings.

does the record show that they had matters before the town council during the hearings part of the proceeding? >> no, your honor. there is there's no evidence of that. there's no -- the respondents have no standing to assert the interests of children or police officers or award recipients or or permit applicants. they don't even claim to be in in any of those categories. >> well, what about the public forum part? they did speak occasionally then; isn't that right? >> yes, your honor. >> do we know what they spoke about? >> well, on at least one occasion one of them spoke about the prayer -- or on one or two occasions; and then on multiple occasions spoke about a cable access channel issue. >> and what did they -- what was the issue there? >> something about -- she was expressing vehement disagreement with the town's decision to award a cable access channel to one entity as opposed to another. >> do you have any objection to to doing one thing that was suggested in the circuit court

opinion, which is to publicize rather thoroughly in -- in the area that those who were not christians, and perhaps not even religious, are also welcome to appear and to have either a prayer or the equivalent if they're not religious? do you have an objection to that? >> certainly not. there'd be >> well, then -- then there is there a disagreement on that point, because certainly, that was one of the concerns. it wasn't on anyone's website. there are -- greece is a small town very near rochester, and there are, at least in rochester, lots of people of different religions, including quite a few of no religion. so -- so could you work that out, do you think, if that were the only objecting point? >> i -- i don't know what the town's position would be on that, but it -- certainly, there would be no constitutional problem with doing that. i mean, here as a practical matter, since >> no, no. i'm not saying it's a

constitutional problem i got from the opinion of doing the opposite, of -- of not making an effort to 0 make people who are not christian feel, although they live near in or near the town or are affected thereby, participants over time. >> but, your honor, it's a perfectly rational approach when when any legislative body is going to have a practice of legislative prayer, to go to the houses of worship in the community. >> i'm not saying it's not. i want to know if you have any objection. >> well, i certainly don't think it is constitutionally required, although i would note that as a practical matter that has happened here in 2007. >> do you -- would you have if all that were left in the case were the question of you're making a good faith effort to try to include others, would you object to doing it? >> i don't know what the town's position is on that. as i said, as a practical matter, that has already happened here. the town deputy supervisor was quoted in the newspaper saying anyone can come in prayer, anyone can >> yes.

that's different from putting it on a website. that's different from making an organized effort to see that people get the word. >> as i say -- >> mr. hungar, what -- what is the equivalent of prayer for somebody who is not religious? >> i would >> what would somebody who is not religious >> in the rubin >> what is the equivalent of prayer? >> it would be some invocation of guidance and wisdom from >> from what? >> i don't know. in -- in the rubin case -- >> in the rubin case, a nonreligious person delivered invocations on multiple occasions. >> i suppose a moment >> perhaps he's asking me that question and i can answer it later. >> i'd like to reserve the remainder of my time. >> yes. thank you, counsel. mr. gershengorn. >> mr. chief justice, and may it please the court: the second circuit's decision here requires courts to determine when a legislature has permitted too many sectarian references in its

prayers or has invited too many christian prayer-givers. that approach is flawed for two reasons. first, it cannot be squared with our nation's long history of opening legislative sessions not only with a prayer, but a prayer given in the prayer-giver's own religion idiom. and second, it invites exactly the sort of parsing of prayer that marsh sought to avoid and that federal courts are ill- equipped to handle. >> and what was the purpose of marsh saying that proselytizing or damning another religion would be a constitutional violation? >> so we agree with >> so unless you parse the 0 prayers, you can't determine whether there's proselytizing or damnation. that is judge wilkinson's point when he was faced with this question, which is, you have to, to do some parsing. >> so, your honor, you have to look at -- at the prayer to determine proselytizing. but it's a very different series of judgments, we submit, than

determining whether something is sectarian. the kinds of debates we're having, i think, are reflected in the differences >> now, seriously, counselor. you can't argue that the quote that justice kagan read is not sectarian. it invokes jesus christ as the savior of the world. there are many religions who don't believe that. let's get past that. >> so, your honor -- >> this is sectarian. >> we agree that these are sectarian. but the kinds of debates that you're seeing among the parties, whether, for example, 15 percent, 50 percent, 60% of the congressional prayers are sectarian. those are debates about whether "holy spirit" is sectarian. a court -- a district court has held that "allah" is not sectarian. >> so let's talk about the 0 context instead of prayer. if the chief justice got up at the beginning of this session and said "all rise for a prayer," would you sit down? >> your honor, whether i would sit or not, we don't think that

that would be constitutional. >> do you think -- how many people in this room do you think would sit, talking truthfully? >> i don't think -- i don't think many would sit, your honor. >> all right. >> but we don't think that that >> so why do you think that someone who is sitting in a small room where hearings of this nature are being held, when the guy who's about, the chairman of this legislative body, is about to rule on an application you're bringing to him or her, why do you think any of those people wouldn't feel coerced to stand? >> so, your honor, i'd like to address the coercion point this way: with respect to town councils, it's our view that as a general matter that the municipal legislatures can invoke the same 0 tradition of solemnizing and invoking divine guidance as federal and state legislatures. we recognize there are differences, however, and your honor has pointed to one and that's the -- what was called the public forum here. and we think it's very --

because those are the ones where the -- is adjudicated license applications, liquor applications. and we do think it is important on this record that those are separated in time. it's at the court of appeals appendix 929 and 1120. so that the meeting starts at 6:00, which is in the prayer -- when the prayer is, but the board meetings to adjudicate those types of issues are at 6:30 or 6:32. and so the type of concern that your honor has raised is not presented on this record and we think that's significant. we think some of the other factors -- >> mr. gershengorn, do you think that if the legislature -- excuse me -- if the town board here just, you know, started it off with a prayer and then kept on going, do you think that that would be a significantly different case and you would switch sides? >> i don't know that we would switch sides, your honor. but i do think it mitigates the coercion that the -- that the respondents have 0 identified. and we think it -- that that is one of the significant differences between the town, the -- the town legislature and a -- and the legislature >> you agree that coercion is the test, however?

>> we don't agree that coercion is the test, your honor. >> if it is the test >> we think it's the history -- we think the history is the -- the principal guidance of marsh is -- we think there are three pillars in marsh: first of all, that the history is what the court looks to first. and here there was a long history of legislative prayer. second, that the court should be very wary of parsing prayer to make sectarian judgments. and third, what marsh said is that adults are less susceptible to religious doctrine -- indoctrination and peer pressure. >> mr. gershengorn, could you respond to this? here's what our -- our country promises, our constitution promises. it's that, however we worship, we're all equal and full citizens. and i think we can all agree on that. and that means that when we approach the government, when we petition the government, we do so not as a christian, not as a jew, not as a muslim, not as a nonbeliever, only as an american. and what troubles me about this case is that here a citizen is going to a local community board, supposed to be the closest, the most responsive

institution of government that exists, and is immediately being asked, being forced to identify whether she believes in the things that most of the people in the room believe in, whether she belongs to the same religious idiom as most of the people in the room do. and it strikes me that that might be inconsistent with this understanding that when we relate to our government, we all do so as americans, and not as jews and not as christians and not as nonbelievers. >> so, justice kagan, i think we agree with much of what you say. but -- but with the difference here is that this approaching of the government body occurs against the backdrop of 240 years of history, which makes this different. from the very beginning of our legislature, from the first continental congress, and then from the -- from the first congress, there have been legislative prayers given in the religious idiom of either the official chaplain or a guest chaplain, that have regularly invoked the -- the deity and the

the 0 language of the prayer- giver. and that >> mr. gershengorn, your your brief is the one who brought up and you were quite candid about it -- the hybrid nature of that body. i think it's on pages 22 to 24 of your brief. and you say it would be proper to have certain checks in that setting. so for one, make sure that the entrance and the exit is easy. for another, inform the people in town of the tradition so they won't be confused. but you recognize on the one hand that this isn't like congress or the nebraska legislature, and then you say these would be nice things to do. are you saying just that it would be good and proper or are you saying it would be necessary given the hybrid nature of this body? >> so, your honor, with respect

to some of the things we identify which are similar to the ones that justice breyer recommended, i think our view is they're more akin to safe harbors, that there are undoubtedly advancement challenges that could be brought. and to the extent that the town can point to things such as -- such as public criteria and things like that, that is helpful. with respect to the -- the public forum aspect, i don't think we have a position as to whether 0 it is required, but we do think that that makes this case the much easier case, because of that separation of the one part that is the strongest argument for the other side, that there is an element of coercion, that your application is -- is being ruled on, that the separation the town has adopted makes that much less persuasive. we think the other elements that the respondents have pointed to for coercion are ones that trouble us because they are things that have analogs in our history. so, for example, they point to the presence of children.

but, of course, on the senate floor are the senate pages, who are all high school juniors. and as the reply brief points out, there are often children in the galleries at state legislatures being acknowledged. and so some of those -- those elements that the respondents have pointed to for coercion we think are not ones that the court should should adopt. >> of course, your -- your test is whether or not -- part of your test -- is whether or not it advances religion. if you ask a chaplain for the state assembly in sacramento, california, who's going to go to the assembly to deliver a prayer, are you going to advance your religion today, 0 would he say oh, no? >> so, your honor, i think it's a much narrower test. what this court said in marsh was that the limit on legislative prayers is prosle -- does it proselytize, advance, or denigrate any one religion. we think with respect to the content of the prayer, that the second circuit got it just about right, that the question is does it preach conversion, does it threaten damnation to nonbelievers, does it belittle a

particular >> so -- so you -- you use the word "advance" only as modified by "proselytize"? >> what marsh said was "proselytize, advance, or denigrate." >> because that's -- that's not what your -- your brief says "does not proselytize or advance." >> that -- that's the language from marsh, your honor, is to proselytize or "proselytize, advance, or denigrate." >> but that's that the test you want us to adopt and >> it is, your honor. >> i'm asking whether or not it is, in fact, honest and candid and fair to ask 0 the minister or -- or the priest or the chaplain or the rabbi if by appearing there, he or she seeks to advance their religion? >> so, your honor, i don't think that's what marsh meant by advance. >> if not, i'm not quite sure why they're there. >> you're not quite sure why "advance" is there, or why the rabbi is there. we don't think that the mere presence of the rabbi -- that's what marsh held, that marsh -- what marsh says is "advance" 21 does not mean having a single -- a single chaplain -- a chaplain of a single denomination or looking at the content of the sectarian prayer in light of that history. thank you, your honor. >> thank you, counsel.

mr. laycock. >> mr. chief justice, and may it please the court: petitioner's answer to justice kagan's opening question is entirely formalistic. there is no separation in time between the public hearing and the invocation. people appear before this town board to ask for personal and specific things. our clients put shows on the cable channel. they were concerned the cable channel was about to be abolished or made much less usable. people appear to ask for a group home, parents of a down syndrome child. there are many personal petitions presented at this -- in the immediate wake of the prayer. >> but that's during the public that's during the public forum part. >> that's in the public forum. >> which is not really -- it's not the same thing as the hearing. >> it's not the same thing as the hearing and that's the point, your honor. >> there's another -- there's

another part of the proceeding that is the hearing. >> yes. >> and that's when somebody has a specific proposal. they want to -- something specifically before the board and they want relief. they want a variance. >> the -- the hearing is a particular kind of proposal. >> and that is separated in 0 time. >> that is -- that is somewhat separated in time. the forum is not. and people make quite personal proposals there. they ask for board action. they often get board action. >> but that is a legislative body at that point. it's clearly a legislative body, is it not? the only -- the difference is it's a town rather than -- than congress or a state legislature where you have more formalized procedures. this is this is more direct democracy. or it's like a -- it's a town meeting. >> it is -- it is direct democracy. when a citizen appears and says, solve the traffic problem at my corner, solve this nuisance family that commits a lot of crimes in my block, that's not asking for legislation or policymaking. that's asking for administrative action. this board has legislative, administrative, and executive

functions. >> well, if that is your argument, then you are really saying you can never have prayer at a town meeting. >> that's -- that's not what we're saying. we're saying >> how could you do it? because that's the kind of thing that always comes up at town meetings. >> we're saying you cannot have sectarian prayer. the town should instruct -- should have a policy in the first place, which it doesn't, instruct the chaplains keep your prayer nonsectarian, do not address points of >> all right. give me an example. give me an example of a prayer that would be acceptable to christians, jews, muslims, buddhists, hindus. give me an example of a prayer. wiccans, baha'i. >> and atheists. >> and atheists. throw in atheists, too. >> we -- we take marsh to -- to imply that atheists cannot get full relief in this context, and the mccreary dissenters said that explicitly. so points on which believers are known to disagree is a -- is a set that's in the american context, the american civil

religion, the judeo-christian tradition >> give me an example then. i think the point about atheists is a good point. but exclude them for present purposes and give me an example of a prayer that is acceptable to all of the groups that i mentioned. >> about a third of the prayers in this record, your honor, are acceptable. >> give me an example. >> can i have the joint appendix? the prayers to the almighty, prayers to the creator. >> to "the almighty." >> yes. >> so if -- if a particular religion believes in more than one god, that's acceptable to them? >> well, some religions that believe in more than one god believe that all their many gods are manifestations of the one god. but the true polytheists i think are also excluded from the mccreary dissent. >> what about devil worshippers?

>> well, if devil worshippers believe the devil is the almighty, they might be ok. but they're probably out. >> who is going to make this determination? is it -- is it an ex ante determination? you have to review the proposed prayer? >> i'm just flipping through. there are a number of examples, but if you look at page 74a of the joint appendix, the prayer from august 13, 2003 -- no i'm sorry. that ends "in christ's name." but there are -- the count was about, about two-thirds, one- third. so there are plenty of them in here. >> 74a, "heavenly father," that's acceptable to all religions? >> "heavenly father" is very broadly acceptable. and you know, the test cannot be unanimity, because that's impossible, right? that's why the atheists are -- that's why the atheists are excluded. i'm sorry, justice scalia; would you repeat your question? >> well, i'll repeat mine.

it was: who was supposed to make these determinations? is there supposed to be an officer of the town council that will review? do prayers have to be reviewed for his approval in advance? >> no. principally the clergy make this determination. there is a 200-year tradition of this kind of civic prayer. the clergy know how to do it. if the city has a policy, then an occasional violation by one clergy is not the city's responsibility. so -- so this is left principally to the clergy by simply giving them instructions. they receive no instruction of any kind about the purpose of this prayer or >> so there is an official in the town council that is to instruct clergy about what kind of prayer they can say? >> that's right. state legislative bodies, the house of representatives have these kinds of guidelines. they issue them to the guest clergy before they appear. >> and if i'm -- if i'm that official and i think a prayer was over the top for being

proselytizing and particularly sectarian, i would say i rather not -- you not come back next week; i am going to look for somebody else? >> well, you might have a conversation with him first and >> well, so in other words 0 the government is now editing the content of prayers? >> editing the content of government-sponsored prayers. of course these clergy can pray any way they want on their own time with their own audience. but this is an official government event. and it's part of the board's meeting. it's sponsored by the government. and they delegate the task to these clergy and they can define the scope of that >> your point is that it coerces, it's bad because it coerces? >> it coerces the people who are about to stand up and ask for things from the board and >> if there is -- if coercion is the test of the free exercise clause, why do we need a free exercise clause? if there's coercion -- i'm sorry of the establishment clause, why do we need the establishment clause? if there's coercion, i assume it would violate the free exercise clause, wouldn't it?

>> well, i think that's right. and that's why >> so it seems to me very unlikely that the test for the establishment clause is identical to the test for the free exercise clause. >> well, it seems to me unlikely 0 as well. coercion is one test for the establishment clause, but there is also broad agreement on the court, and there has been, that sectarian endorsements are prohibited by the establishment clause. >> what exactly since you are adopting the coercion test, what exactly is coercive in this environment? having to sit and listen to the prayer? >> there are many coercive aspects here of varying degrees of importance. citizens are asked to participate, to join in the prayer. they're often asked to >> they are asked to participate, and -- but not in any tangible way. they say, "well, i'm not going to participate, and everybody's just sitting there." >> they are often asked to physically participate, to stand or to bow their heads. the testimony is most of the

citizens bow -- most of the citizens bow their heads whether they are asked to or not. so people who are not participating are immediately visible. the pastors typically say: "please join me in prayer." they offer the prayer on behalf of everyone there. they talk about "our christian faith." >> this is coercion? he says, you know -- he says, "may we pray," and somebody doesn't want to pray, so he stays seated. >> what's coercive about it is it is impossible not to participate without attracting attention to yourself, and moments later you stand up to ask for a group home for your down syndrome child or for continued use of the public access channel or whatever your petition is, having just, so far as you can tell, irritated the people that you were trying to persuade. >> let me give you an example of a practice that's a little bit different. maybe you'll say it's a lot different from what the town of greece does. first of all, this town starts out by making -- by proceeding in a more systematic and comprehensive way in recruiting chaplains for the month or

whatever it is. so instead of just looking to all the houses of worship within the town, it identifies places of worship that may be outside the town boundaries that people within the town who adhere to a minority religion may attend. and it makes it clear that it's open to chaplains of any religious -- of any religion on a rotating basis. and then they have -- they structure their proceedings so that you have the prayer, and then 0 the legislative part of the town meeting. and then there's a clear separation in time and access between that part of the proceeding and the hearing where variances and things of that nature are held. now, you would still say that's unconstitutional because you have to add on that a prayer that is acceptable to everybody; is that it? is there any other problem with what i've just outlined? >> well, if the separation in time really works, that's part of the remedy that we've

suggested that is possible here. we still believe that prayers should be nonsectarian. >> on the remedy, this case was remanded by the second circuit for the parties together with the court to work out appropriate relief. and if you could tell us what you think that relief would be, because then that is a measure of the constitutional infraction. so what would -- you put yourself before the district judge and propose the changes that you think would be necessary to bring this practice within the constitutional boundary. >> well, we think the town has to have a policy. >> well, just to be clear, are you talking about what would be satisfactory to the second circuit or satisfactory to you? because you don't accept the second circuit's approach. >> well, we've tried to sort out

the totality of the circumstances to make it clearer. >> what my question was >> i'm talking about what would be-19 >> your theory, and you say existing situation violates the constitution. so what changes do you think would need to be made >> we think -- >> that would bring this within the constitutional boundary? >> we think the town needs a policy. the policy should give guidelines to chaplains that say: stay away from points in which believers are known to disagree. and we think the town should do what it can to ameliorate coercion. it should tell the clergy: don't ask people to physically participate. that's the most important thing. the government suggests disclaimers might help. we think that's right. the government suggests separating the prayer a bit more in time. some states put their prayer before the call to order. the prayer could even be five minutes before the beginning of the meeting.

the coercion can't be entirely eliminated, but the gratuitous coercion, the things that are done that don't have to be done in order to have a prayer could be eliminated. and we think those two pieces are the components of a remedy. >> mr. laycock, it seems to me that you're missing here is -- and this is what distinguishes legislative prayer from other kinds -- the people who are on the town board or the representatives who are in congress, they're citizens. they are there as citizens. the judges here are not -- we're not here as citizens. and as citizens, they bring, they bring to their job all of all of the predispositions that citizens have. and these people perhaps invoke the deity at meals. they should not be able to invoke it before they undertake

a serious governmental task such as enacting laws or ordinances? there is a serious religious interest on the other side of this thing that -- that -- that people who have religious beliefs ought to be able to invoke the deity when they are acting as citizens, and not -- not as judges or as experts in in the executive branch. and it seems to me that when they do that, so long as all groups are allowed to be in, there seems to me -- it seems to me an imposition upon them to -- to stifle the manner in which they -- they invoke their deity. >> we haven't said they can't invoke the deity or have a prayer, and they can certainly pray any way they want silently or just before the meeting. we've said they cannot impose sectarian prayer on the

citizenry, and that is very different from what congress does, it is very different from what this court does. maybe the closest analogy is legislative committee hearings where the citizens interact. we don't have a tradition of prayer there. what -- what -- what the town board is doing here is very different from anything in the tradition that they appeal to. >> are you -- i would like you to take into account an aspect of this. i mean, in my own opinion, i don't know of anyone else's, i'm not talking for others. but one -- a major purpose of the religion clauses is to allow people in this country of different religion, including those of no religion, to live harmoniously together. now, given that basic purpose, what do we do 0 about the problem of prayer in these kinds of legislative sessions? one possibility is say, you just can't do it, it's secular. but that is not our tradition. >> that's correct. >> all right. the second possibility is the

one that you are advocating. and it has much to recommend it, try to keep non-denominational, try to keep it as inoffensive to the others as possible. that's the upside. the downside is seeing supervised by a judge dozens of groups, and today, there are 60 or 70 groups of different religions coming in and saying, no, that doesn't work for us, this doesn't work for us, and that's the nightmare that they are afraid of. i mean, even in this town or in the area, there are significant numbers, as well as christians, of jews, of muslims, of baha'is, of hindus, and others. all right. so there's a third approach, and that is say, well, you can't have them if there's any aspect of coercion. but we just saw people walking into this room, "god save the united states" and you want to win your case. i didn't see people sitting down. all right.

then the fourth approach, which is the other that has -- makes its appearance here, is 0 to say let's try to be inclusive. now, was enough -- in other words, so you didn't get the right prayer today, but you -- and even with the nonreligious, you know many believe in the better angels of our nature and the spiritual side of humankind; it's not impossible to appeal to them. so you say, you'll have your chance. and that's the thing i -- i would like you to explore. i mean, is there a way of doing that or is that preferable to the other ways or do we get into trouble? >> we think that rotation does not work. first of all, because -- for several reasons, but most citizens come for a single issue to one or two meetings. they get the prayer they get that night. they don't benefit from the rotation scheme. any rotation scheme will be dominated by the local majority, maybe even disproportionate to its numbers. religious minorities -- unfamiliar minorities give the prayer. there are often political

protests; there are often threats and hate mail. they don't want to give the prayer. and many city councils won't stand up to the political pressure and enable those people to give the prayer. so there are multiple reasons why rotation does not solve the problem here. we think nonsectarianism has a very long tradition. the government is not a competent judge of religious truth, madison said, that was not a controversial proposition in the founding. and even in the first congress, in the prayers they point to, there were no prayers there that violate our principle, 16 invoking details in which believers disagree. because then, 98.5% of the population was protestant, christ was not yet a point that disbelievers disagreed. >> well, that gets exactly to the -- that gets exactly to the problem with your argument about nonsectarian prayer. yes, when -- at the beginning of the country, the population was 98 percent-plus protestant. then it became predominantly christian. then it became predominant almost exclusively christian and

jewish. and it -- but now, it's not that it's it's gone much further than that. so we have a very religiously diverse country. there are a lot of muslims, there are a lot of hindus, there are buddhists, 5 there are baha'is, there are all sorts of other adherents to all sorts of other religions. and they all should be treated equally, and -- but i don't -- i just don't see how it is possible to compose anything that you could call a prayer that is acceptable to all of these groups. >> we -- and you haven't given me an example. >> we -- we cannot treat -- i'm not a pastor -- we cannot treat everybody, literally everybody equally without eliminating prayer altogether. we can treat the great majority of the people equally with the tradition of prayer to the almighty, the governor of the universe, the creator of the world >> you want to pick the groups we're going to exclude? >> i think you picked them, your honor. >> the baha'i, who else? these -- these groups are too

small to -- >> we've already excluded the atheists, right? >> yeah, the atheists are out already. >> we've excluded the atheists. i don't think the baha'i are excluded, but i'm not certain. >> ok. so who else? i mean, you suggest -- you say just the vast majority is 0 all that we have to cater to. >> well, i -- i think the -- the atheists are inevitably excluded. we can't help >> ok. good. got that. number 1, atheists. who else? >> true poly -- true polytheists who don't understand their gods as manifestations of the one god are probably excluded. i'm not sure many others are. and you have all these lawyerly hypotheticals, but the fact is we've done this kind of prayer in this country for 200 years. there's a long tradition of civic prayer and the clergy know how to do it. when in greece, no one has told them that's what we want you to do. and -- and i would say the one time the country in a major way got involved in government-sponsored, sectarian prayers that people disagreed about was when we imposed protestant religious exercises

on catholic children in the 19th century. and that produced mob violence, church burnings, and people dead in the streets. >> mr. -- >> we've already separated out, i thought, in our jurisprudence, children and adults. >> well, lee v. weisman twice reserves the question of whether adults might be subject to similar pressures. >> well, you do accept the fact that children may be subject to subtle coercion in a way that adults are not, right? >> in some ways that adults are not. but there's -- there's no doubt that before you stand up to ask for relief from a governing body, you don't want to offend that body. adults are subject to coercion here. and -- and no competent attorney would tell his client, it doesn't matter whether you visibly dissent from the prayer or not. you try to have your client make a good impression. >> well, i just want to make sure what your position -- your position is that town councils like greece can have prayers if they are non- provocative, modest, decent, quiet, non-proselytizing.

that's your position? >> i wouldn't use all those adjectives, but yes. and we don't think that's difficult to do. >> mr. -- >> congress has a set of guidelines which you've read and are here in the papers 0 and so forth. are those satisfactory to you? >> we'd like to be a little more explicit, but those are vastly better than >> if those are satisfactory to you, then i wonder, are they satisfactory to everyone. and -- and you will find all kinds of different beliefs and thoughts in this country, and there will be people who say, but i cannot give such a prayer if i am a priest in that particular -- or a minister or whatever in that particular religion. i must refer to the god -- to god as i know that god by name. and what do we do with them? that's what -- i mean, we can recommend it, but can we say that the constitution of the united states requires it? >> you know, there are such people and i respect that and

they should not be giving government prayers. they're taking on a government function when they agree to give the invocation for the town board. >> mr. laycock -- >> well, that's -- that's that's really part of the issue, whether they're undertaking a government function or whether they're acting as citizens in a legislative body, representative of the people who bring -- who bring to that their their own personal beliefs. i think the average person who who -- who participates in a legislative prayer does not think that this is a governmental function. it's a personal function. and -- and that's why we separate out the legislative prayer from other kinds of prayers. >> they're -- they're not praying for their congregation. they are -- they are invited by the board, the prayer-giver is selected by the board, the board decides to have the prayer, the board gives this one person and \board gives this one person and only one person time on the agenda to pray. this is clearly governmental as you held in santa fe

>> if you had an atheist board, you would not have any prayer. >> precisely. >> i guarantee you, because it is a personal prayer that the members of the legislature desire to make. >> counsel, assuming that we don't >> mr. laycock, would you >> justice sotomayor. >> assuming -- you hear the 0 resistance of some members of the court to sitting as arbiters of what's sectarian and nonsectarian, and i join some skepticism as to knowing exactly where to join that line. assuming you accept that, what would be the test that you would proffer, taking out your preferred announcement that this prayer has to be nonsectarian? >> well, the test that we have proffered is the test from the mccreary dissent, points on which believers are known to disagree. so you don't have to be a theologian. points on which people are commonly known to disagree, and the fourth circuit has had no difficulty administering this

rule. the cases that come to it are clearly sectarian or clearly nonsectarian. >> it just seems to me that enforcing that standard and the standard i suggested involves the state very heavily in the censorship and and the approval or disapproval of prayers. >> but it's not censorship when it's the governmental >> that may play ultimately in your position if we say that that's why there shouldn't be any prayer at all. but then you have the problem mentioned by justice scalia that we are misrepresenting who we really are. >> if you really believe government can't draw lines here, then your alternatives are either prohibit the prayer entirely or permit absolutely anything, including the prayer at the end of our brief, where they ask for a show of hands, how many of you believe in prayer? how many of you feel personally in need of prayer? if there are no limits, you can't draw lines. >> that's not a prayer. that's not a prayer. >> well, it was how >> "how many of you have been saved? " that's not a prayer. >> it was how he introduced his

prayer, and if you can't draw lines i don't know why he can't say that. >> mr. laycock, sort of, all hypotheticals aside, isn't the question mostly here in most communities whether the kind of language that i began with, which refers repeatedly to jesus christ, which is language that is accepted and admired and incredibly important to the majority members of a community, but is not accepted by a minority, whether that language will be allowed in a public town session like this one. that's really the question, isn't it? >> that's the issue that actually arises in the case. >> that's the issue that actually arises. here's what -- i don't think that this is an easy question. i think it's hard, because of this. i think it's hard because the court lays down these rules and everybody thinks that the court is being hostile to religion and people get unhappy and angry and agitated in various kinds of ways. this goes back to what justice breyer suggested.

part of what we are trying to do here is to maintain a multi- religious society in a peaceful and harmonious way. and every time the court gets involved in things like this, it seems to make the problem worse rather than better. what do you think? >> well, i don't -- i don't think that's true. there are people who distort your decisions. there are people who misunderstand your decisions honestly and -- and innocently. but keeping government neutral as between religions has not been a controversial proposition in this court. and i don't think the fourth circuit has made it worse. they've got a workable rule and the prayers are no longer exclusively christian prayers in the fourth circuit and they have been able to mostly enforce that and there 0 hasn't been litigation at the margins because all the prayers were clearly >> suppose you did this. you combined your two approaches. the town has to -- it cannot --

it must make a good faith effort to appeal to other religions who are in that area. and then you have these words from the house: "the chaplain should keep in mind that the house of representatives, or you would say whatever relative group, "is comprised of members of many different faith traditions," period, end of matter. is that sufficient, those two things? >> that would help immensely. we think some of the clergy need more detailed explanation of what that means, but yes, that would help immensely. >> should we write that in a concurring opinion? >> i mean, i'm serious about this. this involves government very heavily in religion. >> well, government became very heavily involved in religion when we decided there could be prayers to open legislative sessions. marsh is the source of government involvement in religion. and now the question is how to manage the problems that arise 0 from that. >> well, marsh is not the source of government involvement religion in this respect.

the first congress is the source. >> fair enough. the tradition to which marsh points. >> the first congress that also adopted the first amendment. >> that -- that's correct, and that had prayers that did not address predestination or having to accept jesus as your savior or any point on which listeners disagree. >> many of them were very explicitly christian, were they not? >> they were very explicitly christian, but that was not a point of disagreement at the time. they stayed away from any issue that protestants disagreed on. >> in a way it sounds quite elitist to say, well, now, we can do this in washington and sacramento and austin, texas, but you people up there in greece can't do that. >> well, it's not that the people in greece can't do it. it's just that this board is functioning in a fundamentally different way from what 0 congress or the state legislature functions. and also >> my understanding is that the first chaplain of the senate was the episcopal bishop of new york; isn't that correct? and he used to read -- he took his prayers from the book of common prayer. that was acceptable to baptists

at the time, quakers? >> well, it wouldn't have been their choice. but did he talk about the choice between bishops and presbyters and congregations as a way of governing the church? they have not offered a single example of a prayer in the founding era that addressed points on which protestants were known to disagree. and i don't think there is one. the founding generation kept government out of religious disagreements. and what has changed is not the principle. what has changed is that we have a wider range of religious disagreements today. if there are no further questions, we ask you to affirm. >> thank you, mr. laycock. mr. hungar, you have 3 minutes remaining. >> thank you, mr. chief justice. first i would like to correct one factual misimpression, the assertion that only non- christian prayer-givers delivered the prayer after 2008. it's not in the record, but the official web site of the town of greece shows that at least four non-christian prayer-givers delivered prayers thereafter in 2009, '10, '11 and '13.

on the sectarian points, clearly the line >> counsel. >> i'm sorry? >> one a year. >> i'm sorry, your honor? >> four additional people after the suit was filed. >> yes, your honor. >> one a year. >> approximately. >> how often does the legislature meet? >> once a month. and on the sectarian line, i just like to point the court to the senate brief, the amicus brief filed by senators, pages 8 to 17 which shows the extensive history from the beginning of the republic 0 until today of prayer in congress. that would be sectarian and unconstitutional under respondent's position. with respect to coercion, it's unquestionably true that there is less basis for claiming coercion here than there was in marsh. in marsh, senator chambers was required to be on the senate floor by rule, he had to be there to do his job and the practice was to stand every single time, which he did because he felt coerced to do it; whereas, here, the record

suggests that there were three times when somebody requested people to stand out of 121 occasions. the idea that this is more coercive than marsh is absurd. in marsh the court expressly rejected a coercion argument saying, "we expect adults to be able to deal with this." with respect to the history, as well, i think the debate in the continental congress, when this issue was first raised, shows what the american tradition has been. that is americans are not bigots and we can stand to hear a prayer delivered in a legislative forum by someone whose views we do not agree with. that is the tradition in this country, and that's why it doesn't violate the establishment clause. and finally, with respect to the fact that this is a municipality rather than a state or local federal government. that can't possibly make a difference as an establishment clause matter. it makes no sense to suggest that a prayer at the local level is more dangerous for establishment clause purposes than what congress is doing. only congress could establish a religion for the entire nation, which is the core preventive

purpose of the establishment clause. to suggest that there are greater restrictions on municipalities makes no sense at all. we think that the dangerously overbroad theories advanced by respondents are at odds with our history and traditions, which we reflect this tradition of tolerance for religious views that we don't agree with in the legislative context. respondent's theories also conflict with the religion clauses mandate, that it's not the business of government to be regulating the content of prayer and regulating theological orthodoxy. thank you. >> thank you, counsel. the case is submitted. arguments, lawyers and advocates on both sides of the issue spoke with reporters. this is half an hour. >> about 30 seconds and i will begin.

>> [inaudible] >> of course. i am reverend schenck, president of faith and action that filed a brief in this case. with me today is pastor madeiros of greece, new york, who has authored many of the prayers before the town council that are at issue in this case. it is a very vigorous exchange between the justices and the attorneys representing the two sides of this debate. we heard more than a few justices who are quite skeptical about the government dictating how or when clergy or any citizen is allowed to pray. this court has consistently found that prayers offered at legislative sessions are constitutional.

we argue in our brief about legislative prayers totally consistent with both the declaration of independence and with the constitution. if they weren't, as some of the justices alluded to, the court would be in trouble with itself. they began with a form of prayer when the marshall declared "god save the united states and this honorable court."

as a number of justices made in their remarks today, the government has a dubious role dictating the content of any prayer. the government has no authority to instruct anyone in the form or content of prayer. to tell the citizens when he or she is to pray or not to pray, it is a flagrant violation of the first amendment free exercise clause that expressly prohibits the government from interfering with religious exercise. i felt we heard the justices say very clearly that a government official is in no position to dictate how a prayer should be worded.

none of us wants the government telling us what a good prayer is and what a bad prayer is. should this court ban prayer at council meetings or anywhere else, the government would do precisely what the original plaintiffs in this case don't want. that is to establish a religion that requires an innocuous and meaningless prayers to an unknown god. i will yield to the pastor at the center of all of this activity. >> good morning. my name is patrick medeiros. i serve at greece assembly of god in the town of greece. i have appeared before the council many times over the last 14 years.

i have asked god to bless our community and grant them divine wisdom as they do the people's business. i have said yes to serve out the community. it is my responsibility as a citizen. it is my prayer that the justices will uphold my constitutional right to continue this great tradition to pray during these meetings. thank you. >> i am a participant in the brief in the town of greece versus galloway report today.

i am focusing on issues of religion and law. a currently distinguished research professor in tacoma washington. i am pleased with the probing questions of the court today and felt especially good about what i am about to say. the duty to become arbiters of government, as justice souter said, i can hardly imagine a subject less minimal deliberately to be avoided if possible then comparative theology. we agree with the guidance of the marsh opinions that the courts are not the poorest the contents of public prayers and regulating the content violates the establishment clause by imposing an orthodox of neutrality. it would define what theological terms may be used in this prayer

, an impossible task. it is not possible to have a religiously neutral prayer. there is a deity and a civic setting confirmed in the history of our people and the documents confirmed by the supreme court. religions only share some point in common and are quite divergent in others. some religions like christianity and islam believe in one god while some forms of hinduism honor many gods. it cannot provide for a neutral prayer while others are more generally of supreme beings. the religious views are neutered and imposes free exercise in the religion of establishment that flies in the face of the words and practices of those that

wrote the first amendment religion clauses. to demand some suppose a neutral prayer is to strike at the core itself. it is where the state will not interfere with the percent of pray in a civic context and not defy the theological content of this prayer. thank you. >> good morning, ladies and gentlemen. i am senior director at alliance defending freedom. we have a couple of key members of the legal team who will be delivering a short statement.

if you want one-on-one interviews, you can track me down and i would be happy to facilitate that. tom? >> i am happy to answer questions but i don't have a statement to give. >> the supreme court justices and their remarks to you? >> they have lots of questions for both sides and explored lots of challenging hypotheticals. i never make predictions about how the court is going to rule. the town of greece has a legislative prayer practice consistent with the traditions of this country from its very founding.

it is comparable to what the town of greece has been doing and solemnize is the occasion as they begin their work. there is nothing unconstitutional about that. the other sides' arguments would require government to censor prayers to decree what is orthodox and what is not when prayer givers are giving public prayer. that would be contrary to our traditions of religious liberty. >> where does it end? is there no limit to your position? >> the supreme court in the prior case in 1983 upholding legislative prayer at the state level said that as long as the prayer is not being exploited by the government to proselytize or denigrate particular faiths, then it's not constitutionally a problem and it is not

permissible for the courts to regulate the content of the prayer. and there's no claim that the prayers of the town of greece violate those prohibitions, and therefore they're constitutional. >> what's wrong with giving clergy and ministers guidelines and guidance as to what's acceptable and unacceptable? >> it depends on what the guidelines are. if the guidelines are what the mavs want here, which is to say you can pray in these words to these deities but not in those words to those deities, that is government regulating the theological content of prayers prescribing what is orthodox and what is not in religion. and that is contrary to our tradition of religious liberty. >> when ministers ask the community to bow their heads or join them in prayer, is that not proselytizing? >> it is not. first of all, no one is required to do it. people are free not to do it. similar things happen from time to time in the legislature or in congress. and since people are free to pray or not as they choose, there's no constitutional problem with that. >> you don't think that would make somebody uncomfortable if they're the only one not standing or bowing their head? >> the supreme court has upheld that someone might object to a

particular practice or made uncomfortable is not the fusional test? constitutional test. we're talking about the establishment clause and whether or not the government is establishing a particular religion. here the town of greece practice is open to people of any religion or no religion if they choose to give an invocation. >> [question inaudible] only for members of other religions gave those prayers, why did that not happen until the initial lawsuit? that did not happen in the past. >> the practice like the practice of many governmental bodies was to invite all of the clergy in the town with regardless of denomination or religion to deliver a prayer if it they chose. it happened the people who chose to deliver the prayer in greece were christian until 2008 when after this lawsuit was publicized and the complaints were publicized, more people became aware of the opportunity and nonchristians began delivering the prayer both in 2008 and several times since then. >> which they actively invite other members of other

religions? >> i'm sorry. >> they actively invite other members of other religions? they say, hey, it's open? >> the town has never made a secret of its policy. no one had ever requested prior to the plaintiffs in this case. when the plaintiffs in this case complained, the town offered them an opportunity to give an invocation but they declined. >> did say? >> feeling uncomfortable has been standard for standing. [question inaudible] >> i think what i said is that if the supreme court were to adopt the same practice that would raise different constitutional issues. if the supreme court were to adopt a practice of having only one sectarian prayer for a from a particular denomination that would clearly be more constitutionally problematic. that's not the practice here. >> the identical prayer, a single priest on one occasion, you think that would fly or not

fly? >> on one occasion it's hard to say. there's no similar tradition in the courts. and courts are subject to additional constraints in terms of the obligation to be objective and unbiased. but whether one violation whether one prayer would be a violation, it's hard to say. >> thank you. >> i want to thank tom and his team. they did a great job at the supreme court and been a great addition to the team. i think more importantly, i want to thank the town of greece. this is a concerted effort across our country to completely get rid of what's called public prayer, legislative prayer. there are over 200 cases around the united states where groups are trying to challenge the historical practice of legislative prayer. and many of these small towns can't afford this type of a case. the town of greece stood up. and their case ended up here. but i think it's important, what plaintiffs want is censorship. i think no one should be in favor of that. i think when you have different prayer givers, they should have the liberty to pray according to the dictates of their faith

tradition. and that's exactly what this town did it discriminated against none. it allowed anyone to comp on? -- come on an equal basis. even atheist plaintiffs were invited to come and give an invocation. you can't have a policy more open than this. and more importantly, and some of the justices asked good questions, should the government be in the position of censoring the way people pray? no. the people should be able to compose their own prayers. it's on a rotating basis. first come, first serve. anyone's invited to attend. i think the justices asked some intriguing questions and hopefully will come up on the defense of prayer that our country has engaged in since its founding. >> family research counsel representing members of congress amicus in this case.

as the briefs we filed on behalf of members of congress show, the reality is that the prayer practice in the town of greece, new york, is far more religiously diverse than we actually have in the united states congress. ever since the founding of the republic for more than 200 years members of congress have had an official paid chaplain who would be an ordained clergyman who himself personally gives prayers in his own faith tradition. furthermore, 40% of the prayers are offered by guest chaplains as they're sponsored. and each of them praise according to their own faith tradition. in terms of the issues that the lower court in this case recognized as problematic, a majority of the prayers offered in congress actually include, according to what the other side describes as sectarian, to be faithspecific content.

beyond that 97%. of the prayer givers before congress are self identified christian and 97% say that we and us as they pray, facing not just the members but also the gallery incorporating all of this into what they are saying. in 1983 when the supreme court upheld legislative prayer, it used congress as the touchstone of what is acceptable under the first amendment because it was the same congress that wrote the establishment cause of -- laws of the constitution. it created the house and senate chaplain to offer these every day. we're hopeful the court will go the right way in this course. as being consistent with the establishment clause and to make it clear in our second brief at the time has come to step away from this whole concept of if someone subjectively feel the government is endorsing a religious idea and the test is not endorsement, but coercion.

is anyone being coerced to participate in a religious activity contrary to their conscience or some other official establishing religion. that is not what is going on here. we are hopeful the court will go the right way in this case and reverse the court below. tank you. -- thank you. >> i argued the case for the plaintiffs. a number of them support the right of citizens to's participate without participating in another prayer service. most of what you heard was false. there is no rotation system. the only or instructions was to call a pastor. they had no one but christian pastors. i have defended many christians in my career. i do not support the right to use the power of government to

impose on religious minorities. that is what is going on. justice hagan samurai star case, kagan summarized our case. you cannot refuse to participate in the prayer just before you stand up to ask the board to take discretionary action that affects you directly and personally. this is highly coercive and also a sectarian endorsement. it violates all of the principals of the establishment clause that both sides of the court, the liberals and conservatives, have agreed to carry and endorsements are prohibited. and we have both of those things in this case. >> what is the larger problem, the message or the method? >> the message. it does not matter who was selected to give the prayer. it matters what the prayer givers says. the prayers in this case are

explicitly christian and often heavy handedly christian, talking about the saving grace of jesus christ on the crossed and similar things. we do not care if pastors give a prayer as long as they remain nonsectarian. >> how can you make them sectarian to appeal to many religions? how can you do that? >> we have a tradition in this country of nonsectarian prayers that appeal to a wide range of positions. it is true you can't protect everybody. but you can protect almost everybody and you can protect more than one faith. this case is about christians aggressively imposing themselves on their fellow citizens with the power of government. that is not right. it is not part of the american tradition. >> can we get the plaintiffs? >> susan galloway. >> i am susan galloway. i am one of the plaintiffs. i just want to thank americans

united for being our attorneys and representing us. i appreciate the justices hearing this case. i think it is important. i feel the town has aligned itself with christianity by just having christian prayer givers. they have had a couple other people but primarily it is christian. that is very sectarian. as a citizen i felt i was different. and because of my own faith and my own religious beliefs. i'm glad that the supreme court is hearing this. is there anything -- >> what are your religious beliefs? >> i am a jew. >> why did it make you feel uncomfortable? >> i think that when you have people that, first of all, the town, the pastors face the

people, not to the government. it is like they are praying over us. i know when i stood then i sat and i have 100 eyes looking at me and questioning what is going on and thinking i am being disrespectful, it does put pressure on you and makes you very uncomfortable. it singles you out. that should not be in my town government. it should not be anywhere. >> you can give the next prayer. why doesn't that resolve it? you can give a jewish prayer. >> if i wanted to give a prayer, that is fine. that excludes other people. i believe that it has been one- sided and it has favored christianity.

i do not think that is right. >> what would you like to see happen? what do you want to see happen? >> i would like to see people feel they are included in the government and they are not made second-class citizens. they stone their faith or non- faith. -- based on their their faith or non-faith. i think there are ways of doing it that would be more inclusive than what they are doing. >> i am melinda stevens. i live in the town of greece and i am an atheist. i want to thank the americans united legal staff for putting thousands of hours into this very worthwhile and needed action. one thing i would like to say to my fellow atheists is, we need to come out of the closet. atheists are starting to come out of the closet now, after 9/11.

there are many, many of us. we have to follow the lead of the lgbt community and make our voices heard. we can't be shy about this because it is important. we need to be included in town government, and government at all levels. unless we speak up, we are not going to be. >> would any prayer work for atheist's? is there a model that would work for you? >> i have heard atheist indications that i admired. a state senator in arizona gave a wonderful one but he got blowback at the next legislative

session from conservative christians. they bashed him and said two prayers for the one he disagreed with the previous time. so it is hard for atheist or other minorities to speak up because susanna and i have both experienced hostility from our fellow residents in the town of greece. it is not a pleasant experience. >> what happened? >> susan and i got two letters telling us to stay away from town board meetings if we did not like what was going on, to move out of the town if we did not like it. i had vandalism to my house several times. one night someone came in the middle of the night, dug up my mailbox, smashed it, and put it on my car. i have a pool in the backyard. things like that. >> be think the court decision will change [indiscernible]

>> time will tell. i hope -- and this has been mentioned in the media. christians who profession to be moral and upstanding people would do such things? >> any questions? sessione very much the -- it very much the way the session began. [indiscernible] is there a middle ground? >> for years we have had a moment of silence. suddenly in 1999, someone changed all of that for the worst. >> [inaudible] >> i do not know. police filed reports --

reports, but never found out. the casehappened when is being discussed. i have no doubt it was related. >> thank you. my name is aisha khan. united has been so proud to have sponsored this thesend have represented extraordinarily brave and courageous women. we got involved in this case for a very simple reason. y wereieve that what the doing is wrong. participating in a local government is a universal right to citizenship. it should not be conditioned on participation and

the lord's prayer or any other prayers that are unique to a particular faith tradition. theseesidents attend meetings not as participants. children's sports teams are invited to receive awards. people come to ask the board to take particular action. exercising those rights and seeking those important benefits should not be conditioned on bowing one's head in recognition of jesus cchrist. it is important were not asking the board to to discontinue his practice of presenting prayers. participants that do not be asked to participate in them and that the -- they be nondenominational. in god we trust" and not

"christ we trust." allah ore nation under buddha. view, residents can come and participate in this meetings and can be asked to join in a prayer that promises eternal hellfire to anyone who does not accept jesus christ as their savior. that cannot possibly be constitutional. we hope the supreme court will agree that civic participation should not be conditioned on compromising one's -- >> thank you. >> what do say to atheist who do not believe in god? as a professor said, this

tradition that the country has followed does in fact not recognize the increasing diversity of this country. we believe under the proposal we have made that atheists would be allowed to come forward and present a prayer, as would whotheists or anyone else comes from a more diverse tradition than the monotheistic one that the court opened with today. >> thank you. my name is holly. -- we filed aof of them tohalf of stand with them. -- i'm from the baptist joint committee for religious freedom general counsel.

in this case, we stand with those who challenge a prayer practice that would make their political right and incumbent upon their participation in a layer with which they do not agree. clearlyg the court recognizes is an important principle of religious liberty. right should not depend on their adherence to religion. in this environment that the town council and other local governments where there is direct interaction and anticipatory relationship with government, it is improper for the government to engage in the act of religious worship. this is not something that is against prayer. all religious people should and may need to pray for the elected officials. it is important to understand it is not the role of government to lead and -- a religious act. there will be. we have a tradition of strong

liberty that protects all people whether they believe or don't believe without harming government or religious aggregation. >> your name is? from the hollman baptist joint committee. laura from religious liberties. without a brief in support of the town of greece. we believe that religious freedom is critical. it that protection should be respected. christians, jews, awakens -- they recognize religious cans, they-- wick recognize religious diversity. we're hoping the supreme court

will issue a decision that recognizes our long 200 year history of submitting legislative prayers. thank you. thank you. >> on the nextw we discussed -- on the next "washington journal" we discuss employment numbers for october. : when a look at what is next for the affordable care act -- that is followed for what is next for the affordable care act. buehlmann.

>> i think regardless of where you are in the political spectrum, we all feel very fortunate and grateful that we live in the united states of america. it is a unique place. if america was considered to be a product, and we try to sell our products overseas, what is our brand. is the our brand constitution, the rule of law. under that brand and under that value system, there is that the eyes equal under of the law. this is a treaty. no one can disagree with these arguments. the question is whether the

treaty will have the legal affect that is proctored by the proponents of the treaty? we do not hear citations to articles of the treaty. do not hear consideration of the report and -- report. we do not hear legal analysis that would be appropriate for analyzing the legal impact of this treaty. >> this weekend, more than 130 the unitednvolved in nations disabilities treaty. this week, the senate foreign relations committee took up the treaty again. watch saturday morning at 10 a.m. eastern on c-span. on c-span 2 book tv, how underdogs can use her status to their advantage. and being a big fish in a small pond. and on american history tv, on a crowded street, two feet from then president ford, pulling the trigger.

more on sunday at 5:30 p.m. secretary of state john kerry and a number of foreign diplomats are in geneva today to negotiate a deal to limit iran's nuclear activities in exchange for assuming some of the sanctions on the country. with you about the negotiations -- we will hear about the negotiations from jerrold green. affairs las vegas world council, this is about an hour. >> i'm delighted to see you all here. are you able to hear me in the back? excellent. can you make it louder? >> louder? really? ok. i will try. ok. how is it now?

can you hear me now? ok. perfect area now i can hear myself -- perfect. now i can hear myself, too. we are all delighted to see you here today. already, our president has recognized the dignitaries who are here. pleased to present our speaker today -- i am very pleased to present our speaker today. this is a critical moment between the u.s. and iran. it is in the headlines. between iran and its regional neighbor, friends, and foes. potentialthe eve of negotiations on iran's nuclear activities. there's a new president in office in tehran. to host two-eged

day one of our country's knowledgeable and long-term today one of our countries knowledge one long- term experts. dr. jerrold green. [applause] >> i will not take the time to go through his bio. it is very extensive. let me just mention the highlights were a few highlights . we first met when we were both consulting in santa monica about three years ago. he later became director of international programs and development at rand. he oversaw the activities of the center for asia the civic policy.- asia pacific at the same time, you directed

the rand center for middle piece public policy. -- he directed the rand center erie itle east public's is very -- public policy. it is very wide-ranging. we first became aware of each other and got to know each other when he was teaching at michigan, the university of michigan. later he moved to the west coast. he had a stint in the real world. firm. private equity for the last several years and a recognition of his very broad experience and knowledge, he became the president of the pacific council on international affairs in los angeles. is his main expertise

centered on iran and the middle east. i'm delighted that he has taken the time to come today and talk to us about some of the critical issues of the moment. [applause] >> can you hear me? i'm not sure i need a mic. if you can hear me, let me know. i really want to say thank you to paul for inviting me to speak. he is my pal from 30 years -- some 30 years. he is also an extraordinary expert on the middle east and frankly patriotic american. for seven years working for uncle sam in northern virginia and doing important sorts of work. we have been friends for a long time.

his knowledge is remarkable. an expert as someone from out of town -- i'm sitting at this table. i'm talking to congress in berkeley. a member of the house foreign relations committee and the middle east subcommittee. when you get face time with someone of that level of exposure back in washington, it is something to be treasured. just came back from iran two days ago. you want to talk to someone about iran, he is the one to talk to. finally, a professor wrote a book called "why men rebel." i read it as a graduate student. the are the same age, but i was dumb and did not get into graduate school until i was old. you really are living in a remarkably interesting community

this is just one voice. it is on a different one. -- only a different one. i will talk about iran. what i want to do first of all gotry to understand how we to the impasse we are at today. tehranidently was in during the revolution. i was there. i didn't participate, but he -- i witnessedan iranian resolution from the beginnings until the return of -- i was there and saw it firsthand. this is 35 years ago. it was a revolution against the shah of iran. he got the vast majority of the

people in this country to hate him. to get iran is to agree on anything is not easy. he succeeded at this brilliantly. it is quite unfortunate and sad. he had extraordinary resources available to him. trust me. he had a remarkable opportunity. he was ill with cancer in having chemotherapy. all sorts of explanations. it is unfortunate. why do iranians not like us? of an oxymoron. many would say iran is the most pro-american country in the world. what they mean is not the government of iran. they mean the average iranian on the street. i lived in the second largest

concentration of iranians in the world outside of iran. i have been there regularly since the revolution. it is amazing given those high- level -- between our two governments. .hey do not have six packs the average person actually likes the united states. they like american culture. they like basketball. all sorts of stories -- stuff. having said that, again, you will not love it. --ill tell you have iranians i will tell you how iranians think. i just subscribed to these use. i will tell you how we look. it looks like we support dictatorship across the middle east.

iraq's -- we supported attack on iran. it was a dramatic event. our hands on this are not completely clean either. there's a brief period of time where we were trekking off and selling weapons to the iraqis. regime uporrible there and evil, if i may use that word. syria.ad regime in third, the united states favors israel. what iranians believe is that the u.s. favors the jewish faith over muslim states.

states that are populated primarily by muslims. you may not agree. it may not be too. this is the perception. this is what they believe. after the revolution, they took an embassy and they gave it to the -- jerusalem day in tehran. iranians believe that we as a country favor the jewish state over the muslim state. therefore, muslim states, we are anti-islamic. there are arguments against that. the u.s. has a lot of luzon's. >> [inaudible] >> ok. muslims.lot of >> [inaudible] >> ok. this is what iranians believe he read that we do not like muslims.

i guy was murdered because someone thought he was a muslim. -- a guy was murdered because someone thought he was a muslim. reasons -- iran is indeed strangled. stranglingl type of rather than one that resulted in geopolitics. if the u.s. is trying to expel we are.ate iran, there is a reason for it. iranians believe that iran is a great nation, an ancient nation with local interest. they deeply resent what they think we are trying to do. this is all they knew.

there are things about them that they don't like and so forth. it is certainly not going to change. they have their narrative. we have hours. what is ours? they took over our embassy. "argo."all seen great movie. i loved it. i've seen it twice. despite how inaccurate was, i still liked it. [laughter] second of all, the iranian support terrorist and extremist groups. they absolutely do. there was an attack on the jewish community center of what is taught us -- when sns --

buenas aires. i was invited to believe it or not, this jewish -- meeting ined to a tehran that the holocaust did not happen. there was a holocaust denier. i cannot make it. i had a conflict. [laughter] there are people that do deny the holocaust. they threaten to destroy israel. it is american policy.

it was astounding. we are the great savers. they are the axis of evil. great --e there are competing nar ratives. both work in mobilizing negative energy. what is going to happen? what do we know? this is the one i think is the most important. , i'me spent my life reading things about iran and britain by my learned colleagues -- and written by my learned colleagues. there's a certainty with which they tell us about iran and one another.

it is belied by reality. nobody really understands what is going on in iran. it is impossible. the political system in iran is intentionally designed so that it is ok, it is obscure. iranians don't know what is going on. iranians -- it is the nature of the system. they want to avoid what happened to the shah. they want a political system in which it is difficult to overrule the current political order. part of it is the uncertainty that comes in the wake of a resolution. no one wants to make a decision or be at risk. no one wants to take a chance. it is not clear how it works. there's this murkiness.

you know, i feel like helen keller. there's so much that is not evident to us. .t is not clear we lack information. north korea is sort of the old stander of ignorance, but iran is not for mine in terms of the iranian system. i read endlessly and i get frustrated. i did not know about that. political actors. the one that year go all the time is the supreme leader. the supreme leader is many things, one of which is that he is not supreme. he is sort of the political act for, but is a political actor. he is not some autocrat who snaps his finger and things happen. his problem will continue to get worse if he is not

[indiscernible] there is this unique role that [indiscernible] occupied. it is not transferable to someone else. the supreme leader resigns over the islamic republic. not only the spiritual leader, but also the political leader. and heed to engage really needs to get political interest in iran to support him and work with them. certainly he is very influential. he is not the only game in town. it is a challenge. second of all, the religious sector. it is extremely diverse. not that they all agree. there is race diversity and differences of view within the religious that -- sector. some are generally conservative

-- extremely conservative and orthodox and some are actually very enlightened and they get it. they get it. they're working within a difficult system. the third is that revolutionary guard. the revolutionary guard is not ,nly a military organization but also an economic entity that is sort of comparable to the people's liberation army in china. the interest are extraordinary. they are very wealthy. they have built an airport in tehran, for example. there is a battle of another group that wanted to build the airport and they lost. they did not have as many guns. they are again another political entity, which is very influential. none of them are dominant. all of them are important.

you cannot discount any of them. the part about the iranian politics that is so fascinating anonymous have access to is that these people has been a lot of time with one another and aging tea and a read poetry. they do politics, if you will. it is a constant series of negotiations. horse trading and politicking. it is how iranian politics always works. it worked this way under the shah. there were groups of people who would go to school together in a similar industry. i'm sure in congress you had -- that group, the people you work with. they could old days, even be with opposite party. you would do a deal.

it is very interesting. they used to do business all the time. iran operates that way. the idea that there is this one source and they are behind everything. that is simply wrong. forgive me, but there is a lot to cover. i want to have time for questions. because was special they were basically able to do pretty much want -- what they wanted to do. sitting in either know, tehran, before the revolution and some secret confab, most of these people in the room would have supported him. it is not because we like them, but because we do not like the shah. people like me who are snooty guy, hers -- this old

has got people. we'll use him to get rid of the shah. no city in beverly hills drinking tea and wonder what went wrong. now sitting in beverly hills, drinking tea, and wondering what went wrong. that ear was the most -- era was one of the most difficult times. there was the invasion of iraq -- of iran by iraq. there are fountains shooting up red water to symbolize the blood that was shed. this was sort of a 9/11 equivalent to the iranians. the people ofcted iran. it still does today. remember there

was a liberal guy week that we could do business with? it was the rouhani of his age, if you will. all my colleagues were swinging from the chandeliers. a wonderful opportunity. the deal never got made. why? he could not deliver iran. part of it was that the time was not right. it is sort of synonymous. the fact that it was not successful does not mean there was no room for reform here it is simply means that it was unsuccessful. then there was the ahmadinejad run. of the bad guy. he never failed to deliver. i used to call him israel's

secret weapon. the israelis must have loved him. so off the charts, that all he had to do was sit there and watch. it was very easy to deal with iran. it.tion it was easy to deal with iran, o expel iran from the world community and sanction it because ahmadinejad was so issues.tive to the he was concerned with the domestic constituency in iran. he wasn't only u.s. sanctions that destroyed the economy, a what ahmadinejad imself was doing, ridiculously liberal concessions and sorts of and other things. and ahmadinejad in a sense may have been a necessary evil have teed may